Joseph L. Sax

The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention

A. The Massachusetts Approach ... ......... 1. Gould v. Greylock Reservation Commission 2. The Development of the Massachusetts Response to the Problem of Low-Visibility Policy Decisions 3. A Tentative Application of the Massachusetts Approach: Public Trust Problems in Maryland and Virginia .... ............. B. The Public Trust in Wisconsin .... 1. The Early Developments ....... 2. Refining the Basic Concept . ... C. The Public Trust in California . ... 1. The Obligations of Private Grantees . 2. The Obligations of Municipal Grantees a. The need to restrain localism [471] . . . 509 . . . 509 . . . 514

Mountains without handrails, reflections on the national parks

Focusing on the long-standing and bitter battles over recreational use of our national parklands, Joseph L. Sax proposes a novel scheme for the protection and management of Americas national parks. Drawing upon the most controversial disputes of recent years---Yosemite National Park, the Colorado River in the Grand Canyon, and the Disney plan for Californias Mineral King Valley---Sax boldly unites the rich and diverse tradition of nature writing into a coherent thesis that speaks directly to the dilemma of the parks.

Glacier National Park and Its Neighbors: A Study of Federal Interagency Relations

Introduction .............................................. 208 I. External Threats to Glacier National Park ................. 211 II. Park Protection Strategy .................................. 217 A. An Early Surprise: The Unimportance of Law ........ 217 B. Glacier As A Sacred Cow ............................ 222 1. The Parks Moral Capital ......................... 222 2. Glaciers Unexpended Moral Capital .............. 223 C. Some Preliminary Observations ....................... 225 III. Glacier and Its Two National Forest Neighbors ............ 227 A. The Flathead National Forest ........................ 227 1. An Emerging Sensitivity to Glacier ................ 227 2. The Primacy of Managerial Discretion ............. 229 3. Glaciers Tactics: Three Case Studies ............. 230 a. Oil and Gas Development ..................... 231 b. Paving the North Fork Road .................. 233 c. The Cabin Creek Mine ........................ 237 B. The Lewis & Clark Forest ............................ 240 1. The Ineffective Tactic of Silence ................... 241 2. Is Regionalism Inevitable? ........................ 244 IV. Drawing Up A Balance Sheet ............................. 247 A. Is Glaciers Position Uniquely Strong? ... . . . . . . . . . . . . . 247 B. An Evaluation of Glaciers Strategy ................... 249 1. Short-Term: Rearguard Actions ................... 249 2. Long-Term: A Vision of the Future ............... 253 a. The Biosphere Reserve Concept ................ 253

The Realities of Regional Resource Management: Glacier National Park and its Neighbors Revisited

Twenty years ago Glacier National Park was considered the park most at risk from external threats, such as mining and timber harvesting on adjacent lands. This finding led to an earlier Article that examined whether Glacier officials were effectively defending the park from these external threats. We concluded that the park’s non-confrontational strategies were tenuous at best, but that some protection had been achieved by strong laws enforced by environmental advocates. We also noted the park’s early efforts to promote a regional management vision. Since then, the concept of a regional ecosystem that must be protected across formal borders has progressed significantly, though still imperfectly. This Article, based on detailed interviews and documents, is a twenty-year reassessment of resource management in the Glacier region, revisiting controversies from our earlier study and examining several new ones too. It also evaluates the actual forces that drive – and that impede – efforts to manage land in accord with habitat and watershed realities, rather than boundary lines drawn on a map.

Environmental Citizen Suits: Three Years' Experience under the Michigan Environmental Protection Act

The Michigan Environmental Protection Act was the first statute to provide for citizen suits to protect the environment from degradation by either public or private entities and to provide a broad scope for court adjudication. The federal Clean Air Act and Water Pollution Control Amendments, as well as several state statutes, have followed the Michigan Acts lead. The Acts success or failure is an important harbinger of the fate of the environmental movement, because the breadth of its mandate tests the utility of the judicial process as an instrument for environmental protection. In this Article the draftsman of the Michigan Act reviews the first three years of its implementation. The authors find that the Act has received relatively little substantive interpretation, but that a considerable volume of litigation has occurred without the dire consequences which some had predicted. Encouraging developments discussed include the unexpected frequency with which public agencies have invoked the Act and the able and concerned efforts of many judges to protect the public interest in the environment.

Michigan's Environmental Protection Act of 1970: A Progress Report

V. JUDICIAL RESPONSE. .... ............. 1031 A. Cases Tried on the Merits .. ......... ... 1031 1. Payant v. Department of Natural Resources. 1031 2. Muskegon County v. Environmental Protection Organization ... .......... . 1035 3. Crandall v. Biergans ... ......... .. 1037 4. Tanton v. Department of Natural Resources 1038 5. Lakeland Property Owners Association v. Township of Northfield ... .......... . 1041 B. Restraining Orders and Preliminary Injunctions 1042

Selling Reclamation Water Rights: A Case Study in Federal Subsidy Policy

THE federal reclamation program was designed to provide working farmers with irrigation water at prices they could afford. The farmers got their water at low prices, but in the process they got something else even more important-the right to continue to receive that share of water year after year.2 In the arid reclamation states, assurance of a continuing, dependable supply of irrigation water is an extremely valuable asset. A piece of dry land may be almost worthless, but that same tract with a reliable water supply will generally be worth a substantial amount of money. Since the worth of the water right is thus typically reflected in land values, one who sells a farm in a reclamation project may also receive payment for this valuable right.3 Moreover, since the asset which is being thus marketed was created by the investment of public funds in the construction of the project,4 the effect is that the seller converts the

Slumlordism as a Tort

Introduction YE war against poverty has been fought with rather more vigor than its initiators contemplated. Thus far, however, the major engagements have taken place in the streets of Watts and Chicago, which is not quite what they had in mind. Some, who think it odd 0 Associate Professor of Law, University of Michigan. A.B. 1957, Harvard College; J.D. 1959, University of Chicago.-Ed. 0* B.A. 1965, Whittier College; Boalt Hall School of Law, University of California at Berkeley.-Ed. t REAST.EmENT (SECOND), Toars § 46, comment d at 73 (1965).

Is Anyone Minding Stonehenge? The Origins of Cultural Property Protection in England

This Article is the second in the authors ongoing series of articles on cultural property protection. In this Article, the author examines the genesis of preservation policies in the United Kingdom. The midto late eighteenth century witnessed a development boom that threatened many of the ancient ruins of England. Sir John Lubbock introduced a bill in Parliament to provide for the preservation of such ancient monuments. The author traces the history of this bill, thoughtfully exploring the origins of the concepts of cultural heritage property. Specifically, Lubbocks goal was responsible stewardship by proprietors and the government, and his views were eventually vindicated in legislation enacted to protect ancient monuments.

Legal redress of environmental disruption in the United States: The role of courts

Burgeoning public concern about environmental quality has, inevitably, had its impact on the legal system. Laws are being enacted setting quality standards, appropriating money to purchase park lands, subsidizing treatment of pollution, and creating new government regulatory agencies. It is even being recommended by a number of serious legislators that the federal constitution be amended to add a provision guaranteeing to the people an inalienable right to a decent environment. In all the stir of legislative and political activity, insufficient attention may be given to the courts, where very significant developments are taking place. Environmental problems are not a novelty in American courtrooms. Judges have traditionally abated pollution as a nuisance, at the behest of nearby property owners; and it is quite common for government agencies to obtain judicial enforcement of their orders regulating the use of land, water and air. During the last few years, however, a rather novel kind of court action has been developing which has important implications not only for legal institutions, but for our whole way of thinking about how to deal with environmental problems. These new lawsuits are particularly characterized by three facts: first, the plaintiffs are private citizens, not public agencies; second, they