Trespass laws in Idaho are now harsher - and more confusing

Photo: Ryan Stoa

Photo: Ryan Stoa

In the 2018 legislative session, the Idaho Legislature passed a sweeping new bill aimed at reforming Idaho's trespass laws.  It will go into effect tomorrow - July 1 - but not without controversy.  The new law changes the definition of trespass, while ramping up penalties for potential trespassers.  It represents the latest installment of the public vs. private lands battle taking place across much of the western United States.  I wrote an op-ed on the new law that appeared in newspapers in Idaho, Washington, and Oregon.  Link to the Idaho Press edition here.  Text below:

For many of us, myself included, Memorial Day marked the unofficial start of summer. I spent the holiday weekend camping in the Sawtooth National Forest, humbled by the surrounding jagged peaks still locked in winter’s grasp. Driving up on the Ponderosa Pine Scenic Byway, I passed through the Boise National Forest and Salmon-Challis National Forest, making note of countless summer adventures to be had in the Mores Creek, Payette River and Salmon River watersheds. When I look at Idaho’s wildlands, I can’t help but see a landscape to be explored. In this, I am sure I am not alone.

And yet, the seduction of outdoor wanderlust must be tempered by the responsibility that comes with a Western land ethic. We are blessed to live in a state with an abundance of public lands — over 60 percent of Idaho’s land area. Our public lands include state and federal parks, forests, refuges and wilderness areas, many of which are managed to provide a diverse range of recreational opportunities. The other 40 percent of our state must be respected for what it is — private.

Most Idahoans understand and respect the difference between public and private lands and their distinct access rights. Still, given the wild and vast nature of the Idaho landscape, it can be difficult to know if a parcel of undeveloped land is public or private. Fences and “no trespassing” signs can be few and far between. Maps can be hard to read. Trespasses happen, often inadvertently.

Idaho’s trespass laws have been criticized over the years, largely for being confusing or inconsistent. During the 2018 Legislature, Idaho lawmakers passed a sweeping bill that altered the meaning of “trespassing” and increased penalties for violators.

Unfortunately, the bill was hastily drafted and pushed through into law, without meaningful input from sportsmen or law enforcement. If the goal was to eliminate confusion and inconsistencies in Idaho’s trespassing statute, the bill largely missed the mark.

As Idahoans prepare for summer adventures, it is important to understand the impact and consequences of our new trespass law, which goes into effect July 1.

For private landowners, it means significant changes to posting and marking requirements, as well as unclear rules about where public land ends and private land begins. The law is inconsistent regarding the ways citizens can obtain access permission from landowners; one provision requires “written authorization,” while another provision suggests an “implicit invitation” is sufficient.

The trespass bill also imposes harsher penalties on violators. Civil trespass is now considered a “strict liability” offense, meaning violators may be subject to a civil suit even if their mistake was honest and didn’t cause damage. The standards for criminal trespass are similar, such that any trespass could be considered a criminal offense with the possibility of criminal sanctions and a criminal record. In some cases, repeat trespassers will be subject to a mandatory felony charge. Parents or guardians with minors in their care should be aware that the trespass bill does not provide extenuating circumstances or special provisions for juveniles.

Those of us who enjoy Idaho’s great natural wonders and wild landscapes must practice responsible land stewardship. That responsibility includes an awareness of our access rights to public and private lands. Unfortunately, the new trespass bill makes it harder for landowners and citizens to navigate this responsibility. Let’s hope these problems are addressed during the 2019 Legislature.

In the meantime, Idahoans venturing into their favorite wild places must know their rights and responsibilities. Recognize the difference between public and private lands, get permission to access private land and tread lightly. The Idaho summer we’ve all been waiting for is here. Plan ahead and enjoy responsibly.

Canadian Cannabis Regulation

Photo: Douglas Sprott.

Photo: Douglas Sprott.

In early March I participated in a fascinating symposium hosted by the McGeorge School of Law entitled Regulating Marijuana at Home and Abroad.  Perhaps because the marijuana industry is evolving so rapidly, every participant (and many of the attendees) seemed to have some new insight that no one else had picked up on yet.  I was given the opportunity to speak about the differences between US and Canadian marijuana agriculture regulations, highlighting some recent trends among US states on the one hand, and the Canadian federal government on the other hand.  

Canada's marijuana industry is at an inflection point this year, as Parliament is expected to consider and pass legislation that would legalize recreational marijuana use on the national level. Existing national regulations have proceeded in piece-meal fashion with mixed results.  This could be due to the fact that Canada's Parliament was forced to pass medical marijuana legislation by a series of court decisions that found it to be an unconstitutional violation of individual liberty and public health to maintain a federal marijuana prohibition.  I wrote an article comparing Canadian and US approaches to marijuana agriculture regulation that is forthcoming in the McGeorge Law Review (access it here). The introduction to the article is below: 

Federal marijuana policy in the United States and Canada has, in recent decades, been fixated on prohibition. That may be about to change.  In 2017, Canada is expected to become the first ‘Group of Seven’ nation to propose legislation that would legalize and regulate marijuana for recreational use.  According to the Canadian government’s party platform, “marijuana prohibition does not work.”  In a change of direction from decades of prohibition, the government is now calling for Parliament to “legalize, regulate, and restrict access” to marijuana.  Importantly, policymakers and regulators are in the process of developing a federal framework for marijuana regulation that would address agricultural considerations, including environmental impacts and protections for small-scale farmers.

The mood of the United States federal government is a marked contrast.  Marijuana has been a federally criminalized substance since passage of the Controlled Substances Act in 1970.  Following the 2016 presidential elections, there is uncertainty regarding President Donald Trump’s stance toward marijuana legalization and regulation on the state level. However, early indications suggest his administration is not interested in a federal regulatory framework.  Although the Republican Party in control of the federal government is generally supportive of federalism principles and state autonomy, there is fear that the federal government will interfere with state marijuana legalization and regulation efforts.  Absent a regulatory framework that goes beyond prohibition, there is little hope for federal involvement in agricultural or environmental issues facing the marijuana industry.

In addition to this contrast on the federal level, the United States and Canada have divergent experiences when it comes to subnational marijuana legalization and regulation.  In the United States, marijuana legalization has gained momentum and become commonplace on the state level.  California became the first state to legalize medical marijuana use in 1996.  Colorado and Washington then became the first states to legalize recreational marijuana use in 2012.  At the time of writing, twenty-eight states had legalized medical marijuana, while eight states (plus the District of Columbia) had legalized recreational marijuana.  Only five states have maintained a strict prohibition policy on marijuana cultivation, distribution, sale, or consumption.  These states represent less than five percent of the U.S. population.  Despite the federal prohibition, there are now a multitude of state regulatory frameworks in place, with a variety of statutory goals and approaches to compare. 

Canada has not experienced the same subnationally-driven path toward legalization.  Instead, the erosion of prohibition has been driven largely by the courts.  Regina v. Parker, 49 O.R. (3rd) 481 [2000], set the stage for legalization by declaring the federal government’s marijuana prohibition unconstitutional absent an exemption for medical necessity.  As the Court stated, “the marijuana laws forced the accused to choose between commission of a crime to obtain effective medical treatment and inadequate treatment,” a deprivation of liberty, security, and fundamental justice.  Invalidating the marijuana prohibition forced the Canadian Parliament to develop at least a basic framework for medical marijuana use.  Although the development of subsequent regulatory frameworks has been inconsistent, Canada’s experience with marijuana regulation on the federal level can serve as a meaningful starting point with which to pursue recreational legalization and regulation. 

A more developed exploration of U.S. and Canadian experiences with marijuana legalization and regulation is provided in the next section. However, this essay’s primary focus is on the contrasting experiences of these two countries with respect to marijuana agriculture.  The agricultural component of the marijuana industry is, after all, where the chain of supply begins.  And yet, the need for thoughtful and realistic agricultural regulations often takes a back seat to more visible concerns, such as distribution, marketing, sale, and consumption.  The lack of attention paid to marijuana cultivation is a disservice to farmers, regulators, and consumers.  Farmers often confront ambiguous or unresponsive legal requirements, and are forced to choose between staying in the shadows of the illicit market or attempting to comply with a confusing web of unrealistic regulations.  Policymakers and administrative agencies face their own challenge, tasked with creating an ambitious regulatory framework from scratch.  These regulators often do not have a history with the marijuana industry, or analogous regulations to fall back on.  Consumers and the public at large, finally, benefit from having a diversity of market options, as well as marijuana that is sustainably cultivated. 

The early record of marijuana agriculture regulation in the U.S. and Canada is mixed.  Some U.S. states, such as California, acknowledge the agricultural component of the marijuana industry and are taking steps to develop a regulatory framework that supports farming communities and the environment.  Other states, such as New York and Florida, aim to control cultivation by severely limiting the number of producers.  In any case, most states have not developed a robust regulatory scheme for marijuana that comprehensively addresses agricultural issues.

Canada’s approach to marijuana agriculture regulation has been simultaneously restrictive and permissive under the current medically-focused framework.  On the one hand, Health Canada (authorized to regulate cultivation) has only issued thirty-seven cultivation licenses nation-wide, despite receiving 1,561 applications.  Eleven Canadian provinces have two cultivators or less.  In addition, marijuana can only be grown indoors, an energy-intensive agricultural method that artificially reproduces the light, soil, and water conditions found on outdoor farms.  On the other hand, licensed cultivators are allowed to develop, grow, and sell whatever strain(s) of marijuana they see fit, and are free to set their own prices. 

In anticipation of legislation that would legalize and regulate recreational marijuana in Canada, the federal government formed a task force to make recommendations on marijuana policy.  The task force report recommended significant changes to the current approach to agricultural regulation.  Notably, the report recommended that: 1) the federal government take the lead on regulating agriculture; 2) licensing schemes be adapted to promote a diversity of cultivators, including small-scale farmers; and 3) environmental protection be promoted through regulations that include licensing and supporting outdoor farmers.  If implemented, the recommendations would represent a markedly more diverse and inclusive approach to marijuana agriculture regulation.

This essay proceeds accordingly.  In Part II, a brief history of marijuana prohibition, legalization, and regulation in the U.S. and Canada is provided and contrasted.  Part III paints a picture of marijuana agriculture regulation in the U.S. by exploring approaches in three states (California, Colorado, and Washington) where regulatory frameworks for cultivation are relatively developed.  Part IV tells the Canadian story (where agricultural production is, for now, scarcely permitted), while looking ahead to impending regulations for recreational marijuana.  Part V concludes by drawing out common regulatory successes and failures, with an eye toward lessons learned that can inform the future development of marijuana agriculture regulations in the United States and Canada. 


National Monuments, Arctic drilling, DAPL highlight final acts of Obama administration

The Road Canyon Citadel in the 1.35 million-acre Bears Ears National Monument in southeastern Utah.  Photo: BLM.

The Road Canyon Citadel in the 1.35 million-acre Bears Ears National Monument in southeastern Utah.  Photo: BLM.

As expected, the final "lame-duck" months of the Obama administration provided several bombshell announcements regarding American public lands and natural resources.  First, the US Army Corps of Engineers denied the permit needed to complete the Dakota Access Pipeline (DAPL).  The denial comes on the heels of the federal government's Sep 2016 announcement that it would be withdrawing the permit in order to consult with affected tribal groups.  Apparently, the consultation was effective in convincing the Corps to deny the permit (though skeptics claim the meetings were pretext for a political decision) and initiate another round of environmental review instead.  There is a good-to-very good chance that the Trump administration will instruct the Corps to issue the permit, but even if that is the case, the permit denial sets precedent for tribal consultation in a more meaningful way.  Perhaps more importantly, the victory for tribes and environmental groups will almost surely inspire and encourage more pipeline protests in the future, having been successful in blocking two consecutive high-profile pipeline projects (DAPL and Keystone XL).  

Second, the Obama administration invoked the Outer Continental Shelf Lands Act of 1953 to set aside wide swaths of the Arctic off-limits for off-shore drilling.  The American portion of the Chukchi Sea will be entirely off-limits, while most of the Beaufort Sea will be as well.  In a corresponding move, Canada declared a freeze on drilling in its portion of the Artic seas.  The OCSLA allows a President to declare portions of the continental shelf off-limits for oil and gas exploration, though up to this point presidents had put a timetable on a drilling moratorium.  Obama's declaration puts these portions of the Artic off-limits "indefinitely."  Trump has appointed notable oil and gas industry supporters to his cabinet (including the Secretaries of State and Energy, as well as the Administrator of the EPA), and it seems clear his administration will not be fond of these drilling withdrawals. But there's not much precedent to reverse a decision of this nature, or at least not unilaterally (the Republican-controlled Congress could always amend the OCSLA).  If reversed, the decision would almost surely be forced to defend itself in the federal courts.

Finally, President Obama established two new National Monuments.  The 1.35 million-acre Bears Ears National Monument in Utah, and the 300,000-acre Gold Butte National Monument in Nevada.  The Antiquities Act of 1906 authorizes the President of the United States to establish National Monuments as part of the federal public lands system.  Devil's Tower in Wyoming was the first such monument established.  Over time, the Act has been used by presidents to establish substantial areas of land as federally protected.  In total, President Obama has established 29 National Monuments, of which Bears Ears and Gold Butte are his final two.  The move was met with praise and celebration from environmentalists, and scorn and disdain from drilling/grazing interest groups.  Like the OCSLA drilling withdrawals, there is little authority for a president to reverse a National Monument designation (in fact it has never been done before).  But, with a Republican-controlled Congress, several of whom are outraged by the new monuments, there is talk of amending the Antiquities Act or repealing it altogether.  That would be a drastic move, but not altogether surprising if Congress wants to consolidate power over disposition of public lands.

All of this brings us now to the Trump Administration.  President Trump (sworn into office today) will oversee America's public lands and natural resources at a very interesting time.  Climate change continues to dominate debate and negotiations within the international community, the fracking boom is continuing apace domestically, and tensions between public vs. private land supporters remain high.  Meanwhile, with a Republican-controlled Congress and White House, the stage is set for their agenda to dictate the terms of these conflicts.  Already Congress is considering bills that would overhaul the balance of power between Congress and administrative agencies.  It is clear, however, that Obama-era activists will not be backing down from these political and legal battles.  

Presidential Transitions and the Hyperactive Administrative State

President-Elect Donald Trump.  Photo: Gage Skidmore

President-Elect Donald Trump.  Photo: Gage Skidmore

A couple years ago, in response to Congressional obstructionism frustrating President Obama's legislative agenda, he said the following: "I’ve got a pen and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward."  What the President meant by that was that, even without Congressional support, the federal executive's administrative agencies are so broad in scope and powers that the President can still use administrative rules and regulations to govern the country.  This approach was the source of the Clean Power Plan, for example, which itself was a reflection of the administration's commitment to the Paris Climate Treaty it had negotiated with the international community.

At the end of a President's term, and especially when the president-elect is of a different party from the incumbent, there is a sense that there is little work left to be done, or little that can be done.  The "lame-duck" President merely waits out the 6 weeks or so until the inauguration.  Since the rise of the administrative state in the twentieth century, however, that is anything but accurate.  In fact, the past few presidential transitions have seen Presidents continue to create new rules and regulations, often up until their last day in office.  That's because administrative agency rule-making, while technically reversible by the next administration, is in reality difficult to overturn.  Even when rules are reversed or abolished, the process requires considerable human and political investments to pull off.  

A prime example of this was President Clinton's Roadless Rule.  The Roadless Rule prevented logging, mining, drilling, and road-building across millions of acres of undeveloped national forest lands.  The Rule was published a week before President Bush took office.  The Bush administration delayed its enactment, and were not in support of enforcing it.  Overturning the rule would have required a lengthy administrative rule-making process, however, something the administration did not have the stomach for at the time.  The fight then moved to the federal courts, state governments, and the US Congress, as forces battled to preserve, modify, or abolish the Rule.  Eventually efforts to overturn the rule died in front of the DC District Court in 2013, twelve years after the Rule's enactment.  While not all administrative rules and regulations experience such a colorful history, the Roadless Rule demonstrates that a President's powers to set policy for the country do not end on election day.

Next semester I will be teaching Administrative Law.  From an educational point of view, it will be one of the most exciting times in recent history to teach this course.  The Obama administration will be announcing and promulgating hundreds of new rules up until the inauguration, and soon thereafter the Trump administration will do its best to undo or minimize the impact of those new rules.  Some of that has already begun.  A couple weeks ago the Department of the Interior announced a 5-year plan for offshore drilling in the Arctic, prohibiting oil and gas development entirely in most areas.  The Trump administration, which appears to be more friendly towards oil and gas interests, could overturn this plan only after extensive environmental studies and consultations.  

Also of interest will be the Obama administration's handling of the Dakota Access Pipeline, and the Trump administration's approach to that pipeline as well as Keystone XL.  The DAPL permits are still withdrawn, and could be granted or revoked by the current administration.  Or, the Obama administration could kick the can down the road and let the Trump administration handle it (Trump has declared his support for construction of the pipeline).  If it wanted to, the Trump administration could revisit Keystone XL as well.  The original project was denied, but a slightly modified project could be submitted again by TransCanada.  It would take some time to go through the administrative review process, of course, but it would not be surprising if Keystone XL is back on the table next year.  There will surely be more administrative agency drama to come in the next several weeks and months.  

Public Lands and the Social Media Effect

Photo: Ryan Stoa

Photo: Ryan Stoa

I have to admit, I'm a sucker for nature photography.  I love taking landscape shots, and I love seeing them.  A couple months ago I visited the Boise Art Festival to check out the multitude of drool-worthy nature portraits being hawked by the pros.  And although I don't really follow celebrities on social media, I do follow many federal public lands agencies on instagram (more interesting than it sounds).  The Bureau of Land Management, Department of the Interior, Fish and Wildlife Service, and local Idaho photographers keep my Instagram feed populated with photos of our country's most iconic natural landscapes, and some that are off the beaten path.  When I get the opportunity, I like to contribute my own amateur photography as well.  The above shot was taken in Idaho's Sawtooth Wilderness on a beautiful Sunday in late September.

The rise of nature photography on social media may be motivating people to get outside, but it is also taking its toll on wild places.  The Ringer's Molly McHugh explains the conundrum:

Manifest Destiny is defined by the nation’s westward territorial expansion, but it’s also a philosophy about the need to conquer, to discover. What happens when social media increases the rate of outdoor discovery? How long until every corner of the planet has been Instagrammed and geotagged?
These may seem like ridiculous questions, but they’re more legitimate than you might think. It’s become so easy to tell the world what you’ve discovered, and technology can so accurately plot it, that we have arrived at a curious moment in a kind of digital manifest destiny: keep cataloguing, or keep things secret? As every place becomes attainable and collectible, tourist attractions that aren’t prepared — or, really, meant — to host hundreds or thousands of yearly visitors are bombarded with them; national parks visitor numbers have increased 26 percent over the last decade, according to the Associated Press [...]
While the National Park Service and bigger recreation agencies in general have courted the social media ticket, smaller staffs don’t have the same ability to do that, and instead find themselves struggling to deal with the onslaught. National Parks can find this a challenge, too, but the degree of impact is lessened by their resources. “Oregon only has one national park, Crater Lake, and even it’s struggled with crowds,” the Statesman’s Urness told me when I asked about the disparity between larger and smaller departments. “But national parks were already designed for high volumes. A lot of the areas getting hit now weren’t designed for it, and the management in place was never prepared for this. The mechanisms to do anything about it are slow — it’s government paperwork.”

The effect is emblematic of a broader tension between wanting the public to care about wild places and public lands on the one hand, while preferring not to run into other people when visiting those places on the other hand.  Leave No Trace principles can help, and the LNT Center publishes an annual list of Hot Spots designed to raise awareness of places where public use has intensified and threatens the ecological integrity of an area.  Several hot spots are popular rock climbing destinations I'm fond of (North Carolina's Linville Gorge; Kentucky's Red River Gorge; Nevada's Red Rock Canyon).  In general, many share the same characteristics: natural beauty and reasonable access.  Surely there are many other places stressed by increased traffic that didn't make the list.  

While the public can take measures to reduce impacts, appropriations should reflect the increase in demand for park administration and services.  When I was conducting research on Biscayne National Park, a large marine preserve off the coast of Miami, it was evident that both the Florida Fish and Wildlife Commission and the National Park Service were not receiving sufficient funding necessary to enforce public use and fishing regulations.  Many state and federal public lands agencies are under similar constraints.  With an election next week and new governments in place in January, it's a good time to revisit the impacts of recreation on public lands, and the resources agencies need to maintain access sustainably.  

What can the Dakota Pipeline protests tell us about existing tribal consultation requirements?

Sacred Stone Camp, North Dakota.  Photo: Joe Brusky

Sacred Stone Camp, North Dakota.  Photo: Joe Brusky

When the federal government announced in September that it would be withdrawing permits issued for the Dakota Access Pipeline, it was a huge win for Indian tribes and environmentalists who were protesting the construction of the pipeline across sacred sites and sensitive ecosystems.  But the government's announcement also called for a revision to federal policy as it concerns tribal consultation.  Specifically, the government requested feedback and dialogue on two questions:

(1) Within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights?  
(2) Should new legislation be proposed to Congress to alter that statutory framework and promote those goals?

These are fairly open-ended questions, and its fair to wonder if the administration will have enough time to consider responses, formulate a policy response, and implement it in time for this process to have a meaningful impact before the administration change-over in January.  Nonetheless, both questions merit some thought.  I'll tackle the first question in this post.  

Before thinking about how consultation can be improved within the existing framework, we need to know what the existing framework is. There are several statutes that require consultation before proceeding with certain government actions. Here are the most prominent:

The National Historic Preservation Act (which was the consultation statute at issue when the Standing Rock Sioux sued to block the Dakota pipeline from moving forward) requires consultation with tribes that attach religious and cultural significance with certain lands and properties.

The Archaeological Resources Protection Act requires consultation before the government can permit archaeological excavation on tribal lands.

The American Indian Religious Freedom Act provides tribes with access to sacred sites and objects, and allows them to conduct traditional rites.  

The Native American Graves Protection and Repatriation Act requires consultation with tribes regarding the treatment and disposition of human remains and sacred objects.

In addition to these statutes, federal agencies are bound by Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments."  The Executive Order was established in 2000 "in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications."  In 2009, President Obama directed federal agencies to develop a plan of action to implement the directives of EO 13175.  The Department of the Interior's plan can be seen here, for example.  

Many of these consultation statutes, regulations, and policies are fairly open-minded and receptive to consultation best practices.  The Department of the Interior's policy, for example, calls for consultation reporting and training, regular meetings with tribes, the appointment of tribal officers within the agency and sub-agencies, and opportunities for tribal consultations and dialogue throughout the administrative rule-making process.  Other agencies have similar policies and procedures (see the Department of Transportation's policy here).  

So it seems there are numerous avenues for tribal consultation on federal agency actions.  There are a number of statutory directives, as well as tailored tribal consultation plans for each agency.  Why then, is tribal consultation still challenging?  

One reason is that there is ambiguity with respect to which actions "trigger" consultation.  It is obvious that the US Army Corps of Engineers will consult with a tribe if a dam the Corps is operating will be modified in a way that will flood tribal land.  But what if water levels in a reservoir operated by the Corps are modified in a way that may negatively impact salmon, a species fished by a local tribe?  Would that type of activity trigger consultation?  It's not always clear.  And because agency rule-making or government operations often require multiple layers of bureaucracy and approvals, agencies may be tempted to err on the side of expediency rather than consultation. 

An additional challenge is that there are no uniform standards for what constitutes satisfactory consultation.  Often consultation may consist of an invitation to submit comments on a proposed agency action.  Hardly the round-table dialogue many envision when they think of consultation.  The agencies have to balance their duty to consult with the demands on their time and resources; they seek to satisfy their obligations while moving the ball forward.  

Finally, the requirement to consult typically does not carry with it any obligations to undertake any particular final decision or agency action.  For example, while the National Historic Preservation Act requires extensive consultation, ultimately it does not mandate that the permitting agency in question take any particular measures to protect historic resources.  

When the Standing Rock Sioux Tribe sued to block construction of the Dakota Access Pipeline, it claimed that the Army Corps of Engineers had not fulfilled its National Historic Preservation Act obligations because the Corps had not executed a "programmatic agreement" with tribal representatives.  A programmatic agreement is an agreement negotiated with the tribes that governs an agency's actions over a particular activity, so as to reduce impacts on sensitive resources.  The District Court's opinion noted that the Corps had executed such agreements in the past, but its failure to execute one for the Dakota Access Pipeline was not a problem because programmatic agreements are not mandatory.

These issues are not easily remedied, but lessons learned from the Dakota Access Pipeline and other cases, as well as similar provisions and procedural requirements of other statutes, can shed light on some potential fixes to federal-tribal consultation requirements.  My thoughts on those fixes are forthcoming.  


Federal Pipeline Policy pivots toward tribal and environmental interests

Sacred Stone Camp in North Dakota and the Standing Rock Sioux Reservation have become the staging area for protests along the proposed Dakota Access Pipeline route.  Photo: Joe Brusky.

Sacred Stone Camp in North Dakota and the Standing Rock Sioux Reservation have become the staging area for protests along the proposed Dakota Access Pipeline route.  Photo: Joe Brusky.

Last November, the Obama Administration denied federal approval of the Keystone XL pipeline, finding that approval of the pipeline was not in the US' interests.  It largely did so because Keystone XL had become THE symbol of environmental resistance.  Previously, energy infrastructure projects had not been particularly controversial.  Even Keystone XL's impacts (both environmental and economic) were overblown by vehement opponents and supporters of the project.  I wrote then that the federal government's rejection signaled a pivot toward environmental protection, especially as the timing of the rejection came just before world leaders met in Paris to negotiate a major climate agreement.  It also represented a major victory for environmentalists, and the power of environmental protests.

The history of Keystone XL has become more salient in recent weeks, as protests over the proposed Dakota Access Pipeline (DAPL) intensified.  DAPL would carry oil from western North Dakota oil fields to an existing pipeline network in Illinois.  Along the way, however, the proposed route crosses federally controlled waterways, as well as sacred tribal lands and burial sites.  The Standing Rock Sioux Tribe, in particular, is also concerned that an oil spill might contaminate their water supplies.  But protests over the pipeline have evolved into a larger battle regarding tribal and environmental interests, on the one hand, and energy security on the other hand.  Other tribes are standing in support of the Standing Rock Sioux, as are scores of celebrities, politicians, environmentalists, and other activists.  Protests have taken place all over the country.  It is possible that these protests and shows of support for blocking the pipeline would have taken place regardless, but it seems more likely that the anti-Keystone XL movement has provided a model for citizens to use political pressure to block pipeline construction.

The legal process took an interesting turn this week, as the D.C. District Court rejected the Standing Rock Sioux Tribe's request for an injunction.  The tribe claimed that, because it was not consulted about the DAPL (as is required by the National Historic Preservation Act), construction of the pipeline would lead the tribe to suffer irreparable harm worthy of a preliminary injunction.  The court appeared sympathetic to the tribe's concerns, opening its decision thusly: "Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic."  But ultimately the standard one must meet to be granted a preliminary injunction is a very high one.  As the court noted, "'[I]njunctive relief' is 'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief'" [citing Winter v. Nat. Res. Def. Advisory Council].  The tribe didn't meet that standard, according to the court, and the injunction was denied.

The legal defeat notwithstanding, pipeline protesters received a significant victory immediately after the court's decision was released.  The US Department of the Interior, Department of Justice, and Army Corps of Engineers issued a joint statement that federal approval of the DAPL would be suspended pending further review.  In addition, the federal government invited tribes and the general public to participate in consultations regarding tribal lands and resources, and the potential need for new legislation.  The joint statement calls into question the viability of the DAPL moving forward - without federal approval, the pipeline will not be able to cross major waterways blocking its path.  The statement represents a remarkable victory for tribes, environmentalists, and pipeline protestors.

This is, therefore, the second major pipeline protest breakthrough in less than one year.  One of three developments is likely true: either the federal administration is pivoting toward tribal and environmental interests, or the political pressure mounted by pipeline protestors is increasingly influential, or both.  The administration's support for tribal and environmental interests can be measured in other ways over the past few years, and that support is likely a factor in this case as well.  But the influence of protest movements in shaping energy politics is undoubtedly a major factor as well.  As mentioned, these types of infrastructure projects rarely took center stage in the past.  Now, they are doing so with regularity.  It will be interesting to see how the DAPL legal and political processes play out.  It will also be interesting to see if more pipeline protests emerge in the near future.  If the Keystone XL and Dakota Access Pipelines are any indication, high-profile pipeline protests may become the new normal.  

Listen to my interview on News Talk 770

Screenshot taken from The New Republic.

Screenshot taken from The New Republic.

Last week I wrote a piece in The New Republic (originally published in The Conversation) on the subject of Big Marijuana and the promise of the appellation model as a mechanism to regulate marijuana agriculture.   Long-time readers of this blog will be familiar with my arguments, but it's always a pleasure to see them published, posted, tweeted, and commented on in the broader media.  Thanks to all who wrote personal messages (even if some were, let's say, skeptical of my ideas).  

Dan Riendeau is the host of @Night on News Talk 770, a Calgary-based news radio station.  He interviewed me last week to flesh out some of the ideas I wrote about in the New Republic.  We talked about the trade-offs of legalization, the rise of Big Marijuana (and whether or not it is truly inevitable), and the wine industry's appellation model.  You can listen to the full interview (about 15 minutes) below.  An alternate link is available here.

Introducing "Marijuana Appellations: The Case for Cannabicultural Designations of Origin"

A hemp farm at the University of Kentucky was shown to the public in 2015.  Appellations for the cannabis industry may be effective in organizing agricultural regions according to plant type.  Photo: UK College of Agriculture.

A hemp farm at the University of Kentucky was shown to the public in 2015.  Appellations for the cannabis industry may be effective in organizing agricultural regions according to plant type.  Photo: UK College of Agriculture.

Back in April, I posted my second law review article on marijuana regulation, "Marijuana Agriculture Law," forthcoming in the Florida Law Review.  I also previewed a section of the article that addressed the novel concept of applying appellations (or designations or origin) to the marijuana industry.  The thoughtful editors at the Harvard Law and Policy Review enjoyed the article, and I agreed to expand my research on marijuana appellations into an article for their forthcoming issue on the war on drugs.  

The article, "Marijuana Appellations: The Case for Cannabicultural Designations of Origin," is now available for download.  The introduction is provided below:

When California Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act (MMRSA) into law in October of 2015, the bill was hailed as the first step towards putting into place a regulatory framework for marijuana agriculture.  Although the state had legalized medical marijuana in 1996, there had been little to no effort to regulate the industry in any way, particularly its many farmers.  The MMRSA was a step in the right direction in many ways, not least of which was to prepare for the prospect of full-blown recreational use legalization in 2016.  The MMRSA comprehensively tasked state agencies with creating regulatory frameworks for a number of key issues facing the marijuana industry, including licensing, product tracking, labeling, pesticide use, and environmental impacts.

Buried deep in the text of the MMRSA is a provision that would allow the newly-established Bureau of Medical Marijuana Regulation to profoundly shape the nature and direction of the marijuana industry: “the bureau may establish appellations of origin for marijuana grown in California.”  Even if the bureau does not establish marijuana appellations, the MMRSA prohibits the use of California county names in the marketing, labelling, or sale of marijuana products unless the marijuana was grown in that county.    

An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met.  Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product in which the geographic origin carries importance.  The MMRSA provision, although seemingly innocuous, may have far-ranging effects on the marijuana industry in the United States.  As the most populous state in the Union and most prolific marijuana producer, California’s approach to marijuana agriculture regulation is likely to dictate, or at least influence, how, where, and by whom marijuana is grown. Already there is evidence in California that grassroots efforts are underway to establish local designations of origin for marijuana agriculture.  

If the marijuana industry (or even California) were to adopt the appellation model, it would throw cold water on prevailing assumptions that marijuana will become an agricultural commodity in a post-prohibition world.  The demise of the small-scale marijuana farmer is a common narrative of marijuana legalization discourse.  States across the country are legalizing the medicinal or recreational use of marijuana, and with rapid legalization is sure to come an increase in demand.  According to this narrative, it is inevitable that the marijuana industry will consolidate into a handful of agricultural conglomerates producing vast quantities of indistinct marijuana.  As it becomes an agricultural commodity the market will be flooded with cheap marijuana, driving down prices and driving out small-scale farmers.

The narrative is compelling, but misguided.  This Article argues that commoditization and consolidation of the marijuana industry is not inevitable (or even likely), and that marijuana appellations, or American Cannabicultural Areas (ACAs), offer a more promising alternative.  The early history of marijuana legalization suggests that the potential for marijuana farming to remain a small-scale vocation is strong.  To begin with, the market is already dominated by small-scale farms – there are an estimated 50,000 marijuana farms in California alone.  While legalization will no doubt disrupt the industry and create new market participants, it is unlikely that these farms will submit to the ‘Big Marijuana’ narrative.  On the contrary, many of the earliest states to legalize marijuana cultivation have placed severe restrictions on cultivation areas.  In addition, the market for marijuana products is subdivided into an incredible number of marijuana strains, each of which produce their own effects and flavor profile.  As the industry continues to create unique and differentiated strains, it will be difficult to envision marijuana as an agricultural commodity.

Some regions are already experimenting with marijuana appellations, and while challenges to widespread adoption are significant, a marijuana appellation model has promise.  On the other hand, there may be a role for large-scale cultivation and distribution of hemp, a derivative of cannabis plants that is used for industrial products instead of direct human consumption.  Whether or not this duality becomes the norm, commoditization and consolidation is not inevitable.  Marijuana appellations have a bright future, and represent a more local and sustainable agricultural model for the marijuana industry.

Access the full article here.


Big Cypress: Oil and Gas Rights and Multiple Use in the National Park System

Big Cypress.  Photo: Franco Tobias.

Big Cypress.  Photo: Franco Tobias.

Last semester I taught Natural Resources Law for the first time.  Some of the themes we encountered throughout the course included: the federal government's constitutional authority over public lands, the National Park Service's dual mandate to promote conservation and enjoyment of NPS lands, "multiple use" principles, tribal natural resources, wilderness designation, federal energy policy, oil and gas exploration and development, environmental review requirements, and designation of critical habitat for endangered species.  As if tailor made as a law school exam hypothetical, controversial management of the Big Cypress national preserve in South Florida invokes each of these themes.

National Parks Traveler has an excellent rundown of the preserve's troubled past.  A recent decision from the NPS to forego an Environmental Impact Statement in favor of an Environmental Assessment (or more simply, to forego more rigorous environmental impacts review) will allow Collier Resources (owner of oil and gas rights in the preserve) to study the preserve area to determine if oil and gas development is feasible.  The decision is reigniting concerns over many dormant ambiguities in the preserve's enabling legislation and management history.   Consider just a few of these ambiguities:

  • the Big Cypress National Preserve is part of the National Park System and thus its ecological integrity must be maintained, but its enabling legislation provides for some oil and gas development;
  • NPS management of the preserve has, at times, appeared to promote the principle of "multiple use" of public lands (allowing for extensive Off-Road Vehicle use for example), even though the principle does not apply to NPS lands;
  • when the federal government acquired the lands that now make up the preserve, subsurface mineral values may have been taken into account when Collier Resources was paid for surface lands; 
  • Assuming Collier's mineral rights are secure, it is unclear if meaningful energy deposits are located in the preserve, making it difficult to valuate Collier's property interests in advance of a potential buy-out;
  • there are several endangered species living in the preserve - such as the Florida panther - but critical habitat has never been designated
  • federally recognized tribes retain certain use rights in the natural resources of the preserve
  • as a vast wilderness expanse, the preserve is an obvious candidate for designation as a federally protected wilderness area, but park officials disagree on which lands should be designated as wilderness and which lands should not;

If the seismic testing and exploration moves forward as anticipated, at least one of these issues will be cleared up, as Collier and the NPS will have a better sense of how much oil and gas is located in the preserve.  Historically Florida has not been an oil-rich state, so there's a good chance the exploration phase comes up empty.  If that's the case, a buy-out of the mineral rights would be more feasible.  If, on the other hand, Collier finds extraction worthwhile, the company will still face a difficult road.  Collier will have to submit an oil and gas development plan to the NPS for approval.  At that point, a full-blown Environmental Impact Statement is likely, and the fragility of the preserve's ecological resources might limit the extent of development.  The low cost of oil might make such a complex extraction scheme financially impracticable even if the plan is approved and survives third-party litigation.  In any case, potential oil and gas development in a national preserve (and potential wilderness area) is something to keep an eye on.  If nothing else, it makes for a great case study for students of natural resources law.

Federalism and Reform of the Toxic Substances Control Act

Photo: Joey Gannon.

Photo: Joey Gannon.

Last month, in a bit of symbolic bipartisanship, Congress passed the National Bison Legacy Act, making the bison America's national mammal.  Last week Congress passed a significantly more ambitious (if less charismatic) legislative initiative: major reform of the Toxic Substances Control Act of 1976.  The TSCA tasks the federal Environmental Protection Agency with regulating chemicals that pose unreasonable risks to human health or the environment.  It is an admirable statute, but the TSCA hasn't stood up to close scrutiny in recent years.  For one thing, it hasn't been meaningfully updated since 1976.  It requires little from manufacturers in terms of data disclosures or modern technology adoption, and the EPA's regulatory powers are relatively weak.

As a result, regulation of toxic substances has taken place predominantly at the state level, if at all.  States like California, Oregon, Washington, Michigan, and Connecticut have passed comprehensive regulatory programs to address toxic chemicals.  Many of these state programs have been successful, and toxic chemicals regulation is a great example of state leadership filling a federal government void when it comes to environmental governance (climate change is another).  But the state-led approach has its critics, too.  For every state that has passed aggressive chemicals regulation programs, there is another state that has taken little or no action, leaving many populations vulnerable (minority, low-income, elderly, and infant populations bear the highest risk from exposure).  Chemical manufacturers themselves have called for reform as well, preferring a single, uniform regulatory program on the federal level to the patchwork of state programs that must presently be navigated.

Congress responded by passing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, possibly the most sweeping environmental legislation enacted in years:

The bill allows the EPA to evaluate the safety of tens of thousands of older chemicals that were impossible to regulate under existing law and strengthens the agency’s hand in reviewing new chemicals. It requires the agency to consider only safety and health – and not costs – when deciding whether a chemical presents “unreasonable risk.” It charges companies up to $25 million to pay for the reviews, and provides new protections for vulnerable groups such as children, the elderly and people with compromised immune systems.

The bill passed with bipartisan support.  If there was any debate at all, it centered around the bill's preemption of state regulations.  Typically federal law trumpts conflicting state laws, unless Congress otherwise specifies.  Here, some states wanted to maintain their authority to regulate toxic chemicals.  Those states were, unsurprisingly, many of the states with strong existing regulations.  Representatives from California and Washington, for example, expressed concern that weak federal regulations might trump their stronger state regulations.  Or, from a more procedural point of view, if the federal government wants to regulate a new chemical, their lengthy regulatory review process would preclude a more rapid state response.  

All things considered, though, TSCA reform is a win.  A cynical EPA could hamper stronger state regulation in the future, but the more immediate outcome is that a national regulatory program for toxic chemicals is now more firmly in place.