Ecology Law Currents

State and Local Control of Federal Lands: New Developments in the Transfer of Federal Lands Movement

By Martin Nie* and Patrick Kelly**

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Beginning in 2012, western state legislatures reinitiated old efforts to transfer federal lands into state ownership. What started in Utah with the Transfer of Public Lands Act quickly spread to every western state but California.[1] The Transfer of Public Lands Act called for legislation to establish actions to secure, preserve, and protect the state’s rights and benefits in the event that the federal government failed to transfer public lands to Utah.[2] But when other western states and their attorneys general conveyed skepticism about the legal arguments being made by Utah,[3] the movement pivoted to the federal arena, with a focus on a Republican-controlled White House and Congress.

The political strategy coalesced in 2017, when Representative Jason Chaffetz of Utah introduced legislation that authorized the disposal of 3.3 million acres of federal land.[4] The backlash to the “land seizure movement” was swift (e.g., #keepitpublic) and Chaffetz’s bill was widely condemned by a coalition of conservation, hunting, angling, and recreational interests.[5] The legislation was withdrawn a week after its introduction and it looked as though the transfer movement might be losing momentum given the unsuccessful attempts, at the federal and state levels, to transfer or privatize federal public lands.[6] 

But the story is far from finished and the threats to public lands are just as acute today as they were in 2012, when western states began demanding the imminent transfer of title of federal public lands to a state or introduced legislation calling for studies of a possible transfer.[7] These state-based efforts received considerable national attention.[8] But receiving less coverage, and discussed below, are a new spate of bills that do not transfer ownership of federal lands to the states or private interests, but rather give state and local governments control over federal lands and resources. In doing so, these bills radically alter the traditional paradigm of federal lands management, and the constitutional principle of federal preemption, by making federal law subservient to state authority. 

To understand how far Congress is pushing the boundaries of state power, some background in federal public lands and “cooperative federalism” is needed. This context shows that in the past, Congress fashioned a pragmatic balance between the national interest in public lands and providing state and local governments an important role to play in their administration.

Opportunities to Address Climate Change in the Next Farm Bill

 

Sara Dewey,[2] Liz Hanson,[3] & Claire Horan[4]

This post is part of the Environmental Law Review Syndicate (ELRS). Original article can be found here.

Introduction

The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.

Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[5] Estimates of total food system emissions, which include the CO₂ emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[6]

To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.

This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

Caitlin Brown

Caitlin Brown is a 3L at Berkeley Law and Co-Editor in Chief of Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate (ELRS).

 

Introduction

The National Park Service manages over 84 million acres of land divided between 413 different sites, and in 2015 alone, served 307.2 million visitors.[1] Their management goals are based on the 1916 National Park Service Organic Act (“the Act”). Section 1 of the Act defines the Park Service’s purpose as “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[2] How are conservation and impairment from section 1 of the Act defined in the legislative history? How did these concepts originally enter the legislation, and what did Congress think the implications of the standards were? Professor Eric Biber of Berkeley Law posed these questions to me to assist with his research for an article he wrote with Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change.[3] Given that 2016 is the centennial of the National Park Service’s founding by the Organic Act, a deep dive into the legislative history of the National Park Service seemed timely.

In the legislative history, Congress never explicitly defined conservation or impairment. However, the concerns of the Congressmen and the experts who influenced the legislation allow inferences about what these provisions mean. Generally, one can interpret these terms by reference to the differences between National Parks and National Forests. In comparison to National Forests, managed for consumptive use of their resources, National Parks were to be preserved for their scenic value and protected for the benefit of future generations.

As the Park Service manages millions of acres of land vulnerable to the impacts of climate change, these questions are important.[4] The Organic Act and subsequent amendments could offer leeway to Park Service managers as they try to respond to those impacts. Because neither the Organic Act nor its amendments set out specific management directives, I searched the legislative history for any evidence from the debates, conferences, and hearings that was useful in interpreting the extremely broad language of section 1. Ultimately, nothing in these documents prohibits active management by the Park Service to conserve and protect against the effects of climate change.

Pipelines, Protests and General Permits

 Samantha L. Varsalona

Samantha Varsalona is a 2L at Georgetown University Law Center and Staff Member of Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate (ELRS). 

Abstract

The Dakota Access Pipeline (DAPL) has become a contentious topic in recent months. The controversy centers around Dakota Access, LLC[1], a subsidiary of Energy Transfer Crude Oil Company, LLC, and the Standing Rock Sioux Tribe of North and South Dakota[2] (the Tribe or Sioux), a federally-recognized Indian tribe.  The Tribe’s reservation, Standing Rock Indian Reservation, is half a mile upstream from where DAPL’s crude oil pipeline would cross the Missouri River underneath Lake Oahe in North Dakota.[3]  While much of the recent media attention surrounding Dakota Access and the Tribe has focused on the destruction of the Tribe’s ancestral burial grounds, the underlying issue can be traced back to the nationwide permits issued by the Army Corps of Engineers (the Corps) in 2012.[4] More specifically, this article will examine Nationwide Permit 12 (NWP 12), which was one of the fifty NWPs issued by the Corps in 2012[5] and is at the heart of the current legal battle between Dakota Access and the Tribe.

Introduction

The Tribe and environmentalists alike raised concerns about the potential health and environmental consequences of oil spills, being that the Missouri River “provides drinking water for millions of Americans and irrigation water for thousands of acres of farming and ranching lands.”[6] Besides the Tribes concern about the proximity of the pipeline to their reservation, they were also concerned about the pipeline disrupting sacred ancestral burial grounds and places of cultural significance to the Sioux people.[7] In particular, the Sioux have traditionally placed significance on the convergence of the Missouri and Cannonball Rivers because their ancestors gathered at that location to peacefully trade with other tribes.[8] Ironically, this is not the first time the Army Corps of Engineers (the Corps) or the federal government has taken the Tribe’s land in particular location without their consent. In 1958 the Corps dredged the sacred Cannonball river to construct the Oahe Dam, which created the man-made Lake Oahe that now covers the confluence of the two rivers and is the future site of DAPL.[9] The Oahe Dam not only destroyed a site of spiritual significance to the Sioux, but also flooded nearly fifty-six thousand acres of Standing Rock Reservation and over one hundred four thousand acres on the Cheyenne River Reservation.[10]  Overall, the construction of the Oahe Dam destroyed more Indian land than any other public works project in America.[11] Nonetheless, the Tribe continues to use the banks of the Missouri River for “spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation.”[12] With that poignant history in mind, it comes as no surprise that the Tribe would fight so vehemently against DAPL which would obviously  affect both the Missouri River and Lake Oahe.

Fearing, once again, the possibility of sacred burial grounds being destroyed, the Tribe pursued legal action against the Army Corps of Engineers (Corps), the federal agency that approved DAPL’s permits, in hopes of being granted an injunction that would block DAPL’s construction of the pipeline.[13] The outcome of the suit, decided September 9th by the D.C. District Court, held that the Corps had sufficiently followed federal law in approving the pipeline.[14] Minutes after the court’s decision came down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement temporarily halting the work.[15] 

The future of DAPL underneath Lake Oahe is still unclear and it will, more than likely, continue to be a political hot potato for months to come. In its simplest form, the conflict comes down to the permitting process and the Corp’s alleged failure to adequately consult the Tribe before issuing the permit.[16] The permit granted to DAPL is a type of general permit known as Nationwide Permit 12 (NWP 12) and has caused considerable controversy in the past several years.

Congress Must Act To Fully Fund the Land and Water Conservation Fund

 Andrew J. Lewis*

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Introduction

This past summer my family celebrated my grandfather’s 90th birthday by walking the Civil War battlefield at Chancellorsville Virginia. The battlefield forms a section of the Fredericksburg and Spotsylvania National Military Park, 7600 acres of rural Virginia stitched together by twenty-three miles of trails.[1] History enthusiasts wander the hallowed grounds in awe, walking over the very terrain where 85,000 American’s were wounded and 15,000 died for their convictions.[2] Visitors interested more generally in outdoor recreation can lose themselves walking along the ten mile shore of Lake Anna, a 3127 acre sub-park boasting one of the most popular lakes in the Commonwealth of Virginia.[3] As of October 2015, 1,836,626 people had visited the Fredericksburg and Spotsylvania National Military Park that year to reflect on its past and glory in its natural beauty.[4] None of it would have been possible without over $3 million in support from the United States Land and Water Conservation Fund (LWCF).[5]      

For the last fifty years, the LWCF has been a rousing policy success, but today it is in danger. While Congress recently granted the fund a temporary renewal, its future and funding remain in jeopardy. This Article will discuss the history of the LWCF, its undeniably positive impacts, and the shortcomings of the current statute. The Article concludes by urging Congress to pass Senator Maria Cantwell’s Senate Bill 890, a measure currently before the Senate capable of restoring the LWCF to its former glory.

A Leading Cause of Everything: One Industry That Is Destroying Our Planet and Our Ability to Thrive on It

Christopher Hyner

Christopher Hyner is a 3L at Georgetown University Law Center, where he is a Managing Editor for the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Climate change. Ocean dead zones. Fisheries depletion. Species extinction. Deforestation. World hunger. Food safety. Heart disease. Obesity. Diabetes. The list goes on. There is one issue at the heart of all these global problems that is too often overlooked by private individuals and policy makers alike—our demand for and reliance on animal products. We can take a substantial step towards addressing all these problems simultaneously through reducing or eliminating our reliance on meat and dairy products. This begs the question — what are the United States’ major governmental environmental policy enforcers doing to address animal agriculture’s contribution to climate change, if anything? This piece briefly highlights two things: (1) animal agriculture is a leading cause of many major environmental problems we face globally and domestically—most importantly, climate change; and (2) animal agriculture is too often left out of the policy discussion.

First, the interconnectedness of animal agriculture and the environment.

A multitude of environmental problems our planet faces share a common instigator: animal agriculture and our reliance on meat and dairy products. According to the United States Department of Agriculture (USDA), global agriculture—dominated by livestock production and the grains grown to support it—accounts for 30% of greenhouse gas emissions.[1] A 2006 study by the United Nation’s Food and Agriculture Organization (FAO) finds that 18% of global greenhouse gas emissions is directly attributable to livestock production, which is more than the emissions attributable to the entire transportation sector.[2] Whichever number is relied upon, agricultural emissions are only going to increase as rising incomes and urbanization drive a global dietary transition towards increased consumption of meat and dairy products.[3] The growing demand for animal agriculture is expected to be a major contributor to a roughly 80% increase in global greenhouse gas emissions from the agricultural sector.[4] This means that animal agriculture must be a central element of our efforts to mitigate climate change.

In addition to being a major contributor to climate change, animal agriculture is also one of the leading causes of many other environmental issues, including overfishing, destruction of wildlife, deforestation, and depletion of freshwater resources to hydrate livestock or irrigate fodder. According the FAO approximately 75% of the world’s fisheries are either exploited or depleted[5] due to fishing, which will likely lead to the complete depletion of currently fished fish stocks by 2048.[6] As to wildlife, in order to protect the interests of primarily the livestock industry, the USDA and Bureau of Land Management sponsor programs to kill or entrap wildlife that threaten the industry’s bottom line.[7] This has led to the decimation of wolf populations in the Pacific Northwest[8] and the mass round up of wild horses in the Midwest, which compete with cattle and sheep to graze on public lands.[9] With regard to deforestation, the World Bank has found that animal agriculture is responsible for roughly 90% of the razing of the Brazilian Amazon.[10] Lastly, but likely most critically, animal agriculture is the number one consumer of fresh water by a significant margin. Animal agriculture consumes on average 55 trillion gallons of water annually—more than 520 times the water used in hydraulic fracturing.[11] On a micro level, it takes roughly 5,000 gallons of water to produce 1lb. of beef.[12]

Enhancing biodiversity on working agricultural lands through environmental mitigation and offsets: Opportunities in Australia and the United States

Matthew Roach*

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Australian agencies have extensive experience managing working agricultural lands to enhance biodiversity. State and Commonwealth agencies are increasingly using environmental offsets as a tool to manage the impacts of development. However, working agricultural lands are generally not considered a source of potential environmental offsets, as agencies prefer that land used for offsets be wholly set aside for environmental management purposes with limited or no agricultural activities. This contrasts with the United States, where efforts are underway to use working agricultural lands for mitigation purposes.

This paper proposes that working agricultural lands can be used for environmental offsets under Australia’s Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act). There are no significant legal barriers to this occurring, and the increased use of working agricultural land for offsets could generate four positive results, by: (1) achieving long-term environmental gains; (2) addressing the shortage of land available for environmental offsets in Australia; (3) providing land owners with additional income; and (4) improving collective expertise in sustainable agriculture.

Introduction

Australia’s degraded agricultural landscapes

Australia is one of twelve biologically mega-diverse nations, but has relatively high rates of extinction and a poor record of conserving biological diversity overall. [1] Over half of Australia’s land area is used for agricultural purposes,[2] and agriculture is commonly associated with increased mortality and loss of habitat for native species, as well as overall biodiversity decline.[3] Agriculture has led—through impacts like salinization and exotic plant invasion—to habitat fragmentation, reduced landscape heterogeneity, and in some cases, complete collapse of ecological processes.[4]

In addition, some ecological consequences of past land use and changes to agricultural processes have not yet fully played out. For example, populations of long-lived trees persist in agricultural areas, giving the impression of reasonable population sizes. However, tree populations are actually declining over time because agricultural practices prevent recruitment of new trees.[5] This affects not only tree species but understory and animals dependent on tree vegetation. Under a business-as-usual scenario, species already in decline are likely to be lost.[6]

Figures 1 and 2 show land use in Australia and illustrate that a significant extent of Australia’s overall land mass is used for agriculture.

Environmental offsets under the EPBC Act

Environmental offsets involve compensating for impacts on the environment or biodiversity at one location through conservation activities at a different site.[7] In some jurisdictions, including in the United States, environmental offsets are more commonly referred to as compensatory mitigation.[8]

Under the EPBC Act, offsets are used to generate benefits through compensatory activities that “offset” the residual impacts of development after all reasonable efforts have been made to reduce, avoid, and mitigate environmental impacts. Offsets are intended to achieve “no-net-loss” to the environment. Currently, the Commonwealth Department of Environment regularly imposes offset conditions on approvals under the EPBC Act and its offsets policy.[9]

Demand for offsets, and the potential for working agricultural lands

There is enormous demand for offsets but a limited supply of suitable land. In 2010, it was estimated that the global demand for offset lands was at least 86,000 hectares per year.[10] EPBC Act offset conditions generally require that land be permanently reserved for conservation purposes and not be used for agriculture on an economic scale. This has been described as a “conservation estate” approach to offsets. Typically, approvals will permit agricultural uses of land only for fire, weed, or pest management purposes.[11] The exclusion of such a large proportion of Australia’s land area as a potential source of offsets has contributed to a shortage of land available to satisfy EPBC Act offset conditions.[12]

The use of private land and the participation of landowners are critical parts of any effort to reduce biodiversity decline. Privately managed land is an important source of biological diversity.[13] Across Australia, approximately 60 percent of land is managed by farmers or graziers.[14] Moreover, 29 percent of native vegetation and 30 percent of Victoria’s threatened species populations rely on private land.[15]

Not using working agricultural lands for offsets also increases pressure to convert agricultural land to the conservation estate, reducing the viability of Australian agriculture.[16] Numerous studies have shown that working agricultural lands can be managed for environmental purposes in a way that improves ecosystem services and prevents biodiversity decline.[17] The biodiversity value of agricultural land is particularly notable when compared to land uses that typically generate requirements for offsets, such as urban development or mining.[18]

Agricultural producers often have choices available between practices that have lesser or greater environmental impacts. One example of this is the environmental impacts of different pasture grasses. About 46 percent, or 355 million hectares of Australia, are used mainly for grazing.[19] Pasture grasses can be native, exotic, support significant biodiversity values, or be noxious and damaging weeds.[20] Choosing and managing pasture grasses according to their capacity to enhance biodiversity is an opportunity to enhance the biodiversity values of working agricultural lands.

In order to enhance biodiversity on agricultural land, land managers should undertake activities that promote beneficial environmental services such as pollination, pest control, soil fertility, and water quality.[21] Land managers should also learn how to protect and expand patches of high-quality natural habitat and retain paddock trees.[22] Moreover, land managers can enhance biodiversity through whole farm planning, changes to tree planting plans, fencing and altering tillage regimes.[23] Environmental offsets incentivize and fund such activities, ensuring that they may occur more frequently.

Damages from Pesticide Spray Drift under Trespass Law

Terence J. Centner*

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Introduction

In today’s world, millions of people lack access to sufficient quantities of food to meet recommended dietary needs.[1] As the world’s population grows, global demand only increases for food and fiber.[2] These shortages are occurring despite significant increases in the production of food resulting from new and modified practices including the more intense use of land resources,[3] irrigation,[4] plant breeding,[5] genetically modified crops,[6] advances in technology,[7] improved agricultural management practices,[8] and the use of pesticides.[9]

A crop duster spraying pesticides. Photo courtesy of tpmartins.

However, many pesticides harm humans, other animals, and plants, and consequently, governments regulate their use.[10] In the United States, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes a regulatory system under which pesticides cannot be marketed unless they are registered.[11] The registration process submits the pesticide to rigorous cost-benefit analysis, and regulators can remove pesticides that prove more dangerous than initially anticipated.[12] Further, FIFRA makes it unlawful “to use any registered pesticide in a manner inconsistent with its labeling.”[13]

Pesticide use inherently involves risks to humans and the environment.[14] One of the risks is the possibility that spray applications will cause particles to drift onto neighboring properties causing damages[15] The registration of a pesticide covers the possibility of spray drift.[16] Labels warn applicators that the pesticide must be applied in a manner to preclude particles or droplets from being carried onto neighboring properties.[17] Applicators who fail to follow label instructions are liable for damages.[18]

Applicators following label instructions may also incur liability under common law if they cause pesticide drift to enter properties of others and cause damages.[19] While pesticide particles carried by air currents may injure people,[20] the most frequent claim for damages is drift from an herbicide that is carried onto nontarget agricultural crops.[21] Pesticide particulates may also drift onto nontarget organic crops and lead to damages.[22] For these situations, persons suffering damages need to present evidence that establishes liability under a common law cause of action.[23]

Generally, plaintiffs who can show that defendants breached a label instruction or regulatory provision can succeed in recovering damages.[24] However, for claims not involving labeling or regulatory provisions, plaintiffs need to establish trespass or another common law cause of action as a basis for the recovery of damages. These claims prove challenging for plaintiffs to establish. Due to the common usage of pesticides, strict liability is generally not available as a cause of action.[25] Nuisance may be defeated by an anti-nuisance defense.[26] FIFRA preempts negligence claims concerning labeling,[27] and remaining negligence claims tend to be difficult to prove.[28] This means that persons injured by spray drift damages often seek to sue in trespass. Yet, the intangible nature of spray drift makes it difficult for plaintiffs to meet the requirements for a trespass claim. States’ approaches to trespass for securing damages resulting from spray drift vary, and this can mean that plaintiffs must carefully plead interference with exclusive possession together with injury to a res, meaning substantial property damages or damage that is physical,[29] to establish their cause of action in trespass.

Trespass Actions for Spray Drift

Trespass involves an invasion of the interest in exclusive possession of land.[30] Every unauthorized entry of a tangible object creates a trespass, even in the absence of damages.[31] Entry need not be by a person, as an actor may invade another’s interest in exclusive possession by intentionally propelling a thing onto the surface of the land.[32] Moreover, intent in a jurisdiction may be described broadly to include a person who has reason to be aware of the consequences of an act,[33] including inadvertence or mistake.[34] Persons suffering injuries for pesticide spray drift often allege a trespass, and state jurisprudence on trespass will determine whether the facts support a finding of liability.

Invasions of spray drift may not meet the requirements prescribed for tangible objects because airborne drift is considered to be an intangible substance.[35] In the absence of a tangible object, courts have determined that there is no interference with exclusive possession.[36] Furthermore, as an intangible substance, jurisprudence used for odors,[37] dust,[38] smoke,[39] noise,[40] and electromagnetic fields[41] may be applied to actions involving spray drift even though drift is different from these other intangibles.

An examination of claims involving intangible substances discloses three features that limit the success of a trespass lawsuit for pesticide spray drift. The first feature involves a limitation on trespass actions because spray drift is considered an interference with the use and enjoyment of land, and plaintiffs have a remedy under nuisance law.[42] Second, state jurisprudence may hold that spray drift does not interfere with the plaintiff’s exclusive possession.[43] Third, a court may require that intangible intrusions need to result in injury to a res.[44] An evaluation of these separate features means that a claim for damages resulting from spray drift requires a careful accounting of the facts to qualify as a trespass under state law.

Sources of environmental contamination with pesticides. Image courtesy of Roy Bateman.

A. Remedy under Nuisance Law

Courts in some states have justified their denial of liability under trespass for spray drift damages by the presence of the alternative remedy of nuisance for invasions of intangible substances.[45] Because intangible substances interfering “with an owner’s use and enjoyment of land” are nuisances, an action in trespass is not needed.[46] The availability of nuisance law provides adequate redress for persons suffering damages from pesticide drift.

In 2012, the Minnesota Supreme Court drew upon the distinctions between nuisance and trespass when responding to allegations of damages for spray drift in Johnson v. Paynesville Farmers Union Cooperative Oil Company.[47] The court noted that spray drift was an intangible agency.[48] After observing that traditional distinctions between nuisance and trespass have become blurred,[49] the court acknowledged an earlier decision in which invasive odors from a confined hog operation were not recognized as a trespass.[50] Given this precedent, the court found that an intrusion of pesticide spray drift could not constitute a trespass as intangible invasions in Minnesota provide plaintiffs a cause of action in nuisance.[51] Trespass involves an invasion of a plaintiff’s right to exercise exclusive possession of land while nuisance involves interference with a plaintiff’s use and enjoyment of the land.[52] The drift of pesticides did not result in a tangible object invading plaintiffs’ land, so it was not a trespass.[53] Nuisance law provides remedies for intangible invasions.

A court in Connecticut reached a similar result.[54] Responding to a claim for damages from electromagnetic fields, the court noted that there was no substance or thing entering the plaintiff’s land.[55] This led the court to decline to find a trespass, since intangible intrusions can be dealt with as nuisance cases.[56] Likewise, a court in Michigan sought “to preserve the separate identities of trespass and nuisance” when considering intrusions of dust, noise, and vibrations.[57] The Michigan court felt that proving real and substantial damages and balancing them against the usefulness of the offending activity should not apply to trespass law because it would endanger the right to exclusion.[58]

Yet, American jurisprudence generally is open to allowing claims under both trespass and nuisance.[59] The torts of trespass and nuisance address separate interests.[60] Implying that invasions of particles constituting nuisances should not also be considered as trespasses runs counter to giving full recognition to factual situations and injurious behavior.[61] If both interests have been infringed by an invasion of particles, an injured plaintiff should be able to initiate a legal action under both causes of action.[62] Given distinctions in burdens of proof,[63] statutory defenses,[64] and statutes of limitations,[65] it seems incongruous not to allow plaintiffs to allege both causes of action.

B. Interference with Exclusive Possession

Trespasses require an unauthorized intrusion that interferes with the exclusive possession of land.[66] The issue for spray drift is whether particles flowing onto a nontarget site actually interfere with the plaintiff’s exclusive possession.[67] Some courts note that an interference with exclusive possession requires a tangible invasion so that intangibles such as spray drift cannot constitute a trespass.[68] Other courts have recognized distinctions between invasions of intangible substances such as light or sound that may not physically interfere with the possession of property[69] versus intangibles that do cause an interference.[70] If intangible spray drift is determined to physically interfere with exclusive possession, the facts support an allegation of trespass.[71] However, whenever the entry of an intangible substance is less disruptive and does not interfere with a landowner’s exclusive possessory interest, a court might find that the substance does not require that the landowner share possession.[72] Without a showing of an interference with exclusive possession, there is no trespass in these situations.

Photo courtesy of Djuradj Vujcic.

Returning to the Johnson case in which the Minnesota Supreme Court considered an allegation for damages from pesticide spray drift, the court noted that a trespass traditionally required “some physical, tangible agency,” as opposed to intangible substances entering another’s property.[73] The court proceeded to dismiss the plaintiffs’ trespass claim, holding that there was no interference with an exclusive possessory interest.[74] Instead, the court found that the facts, if proven, would show the spray drift interfering with the plaintiffs’ use and enjoyment of their land.[75]

The Vermont Supreme Court also had the opportunity to consider an allegation of a trespass by pesticides in John Larkin, Inc. v. Marceau.[76] The court found that the plaintiff never made any showing that the dispersion of pesticides onto its property “deprived it of exclusive possession of its property or had any other impact on the property.”[77] In the absence of a demonstrated physical impact, there was no interference with exclusive possession, so the dismissal of the trespass allegation was affirmed.[78] However, the court declined to decide “the question of whether the intrusion of airborne particulates may ever be a trespass. . .”[79]

Subsequently in Paris v. Lussier, the Vermont Supreme Court considered an action alleging a trespass by smoke, particulate matter, and carbon monoxide from a neighbor’s wood stove.[80] Due to the absence of a physical impact on plaintiffs’ property from the intangible invasion of airborne particulates, the court concluded that there was no invasion of plaintiffs’ exclusive possession.[81] To delineate a claim of trespass, some type of physical impact was required to establish an interference with exclusive possession.[82] The court specifically reported that the plaintiffs had not “demonstrated [any] physical impact on their property resulting from the airborne particulates.”[83]

The recent Macalpine v. Hopper case from Colorado shows that given sufficient pleadings, a court may find that pesticide drift interferes with exclusive possession.[84] The court concluded that the physical intrusion of spray drift contaminants was a physical invasion because the plaintiffs had “felt the effects of the [defendants’] spray.”[85] Given the physical nature of the spray residue, the Colorado court found that the spray drift constituted a trespass that did not require proof of actual damages.[86]

C. Substantial Damages or Physical Damage

To establish a cause of action in trespass for an invasion by an intangible substance, courts in a number of states have delineated an additional requirement involving substantial damages to a res, or thing.[87] While historic trespass law did not require damages, adding a requirement of damage to a res for intangible substances means that trespass law demands an interference with the right of possession.[88] The requirement of damages or injury means that intrusions of intangible substances occurring as part of normal activities are not trespasses.[89] For example, ambient air almost always contains particles from many sources so that invasions of expected and ordinary particles are not trespasses.[90] But concentrations of intruding particles that cause significant interferences may constitute a trespass if they injure a res.[91]

A leading authority for the requirement of substantial damages is Borland v. Sanders Lead Company, an Alabama case involving the trespass of lead particulates and sulfoxide gases.[92] The Alabama Supreme Court decided that intangible invasions of property interests interfering “with the right to exclusive possession of property” were trespasses.[93] The court determined that trespass is not dependent upon whether the intruding substance is tangible or intangible and that invisible pieces of matter or energy intruding on property could constitute a trespass.[94] However, for a trespass by intangible substances under Alabama law, the court delineated four requirements: an invasion, intentional doing of the act, reasonable foreseeability, and substantial damages.[95]

Borland and others created the “modern view” of trespass law.[96] Intrusions of intangible particles may constitute a trespass if they meet a further requirement of substantial damages to the res.[97] By incorporating a requirement of substantial damages, trespass can be used to address invasions of intangible substances.[98] While intrusions of particles and droplets causing damages to property may be trespasses under this jurisprudence, intrusions of light,[99] odors,[100] and electromagnetic fields[101] generally are not trespasses.[102] Substantial damages to the res show an interference with exclusive possession so that the intrusion of intangible particles constitutes a trespass.[103]

Rather than focusing on substantial damages to a res, some courts have espoused a requirement involving physical damage to the plaintiff’s property. Interpreting Colorado law, the Tenth Circuit Court of Appeals considered a trespass allegation involving a release of plutonium particles that contaminated plaintiffs’ properties.[104] Since the particles were impalpable, the court found them to be intangible and required a showing of physical damage to find liability.[105] Upon remand, the plaintiffs would be required to prove “actual physical damage to their property” to establish a trespass for the invasion of intangible particles.[106] A federal district court in Missouri interpreted the state’s law to enable plaintiffs to maintain a trespass cause of action for stray electricity that allegedly had a deleterious effect on their electric motors and appliances and accelerated corrosion of metal structures.[107] By alleging actual physical damage by the escaping electricity, the plaintiffs had presented sufficient evidence to maintain a cause of action in trespass.

Other courts require some type of physical presence by examining whether the facts show an intangible substance being deposited on the plaintiff’s property. The Fifth Circuit Court of Appeals considered allegations of a trespass by airborne heavy metals that contaminated plaintiffs’ properties and caused other damages.[108] The court found that Texas law allowed trespass actions for airborne particulates if they deposited some “thing” on the plaintiffs’ properties.[109] Because the plaintiffs had introduced evidence that the airborne particulates were deposited on their properties, they had established evidence of a trespass.[110]

A sign placed by the Kansas State Department of Agriculture alerts farmers to crops sensitive to pesticide and herbicide drift. Photo courtesy of Kansas State Department of Agriculture.

D. Bringing Lawsuits for Trespass or Nuisance

Plaintiffs bringing actions for invasions of intangible objects in states with historic limitations on trespass law will need to differentiate their situations to overcome judicial precedents. This may be achieved by introducing detailed evidence to establish a trespass that distinguishes the case from whatever limitation was present in an earlier decision. The facts and evidence of some pesticide drift cases lend themselves to differentiation and qualification as a trespass.

In rare situations, plaintiffs may have been present during the spraying and seen and felt the spray drift coming onto their property. This evidence existed in a Colorado case and was used, with further affidavits, to establish liability under trespass law.[111] The plaintiffs showed that the Malathion residue on their property came from the defendant and that there were no other spray applications that would account for residues. Without acknowledging a physical invasion, the court found the evidence sufficient to grant the plaintiffs summary judgment on the trespass claim.[112]

In most spray drift cases, plaintiffs will not have felt the effects of the spray drift so other evidence is required to establish a trespass. Typically, this will involve damages to a crop.[113] As soon as a problem is noted, a plaintiff will need to evaluate the situation to determine whether sufficient evidence can be obtained to establish liability and whether the damages are sufficient to invest in efforts to secure relief. Gathering evidence to establish causation and prove a trespass will require the assistance of experts who know what to look for, what is needed, and can perform the necessary tests to relate the pesticide drift to injuries.

Plaintiffs generally will need to introduce evidence of physical damage to plants related to a defendant’s spray activities to establish a trespass.[114] An agronomic inspection and tissue samples from the affected area can form the basis of evidence of pesticide damage. The samples would undergo testing using liquid and gas chromatographic methods with mass spectrophotometric detection to identify the culprit pesticide residue.[115] This evidence will need to be gathered immediately as plants rapidly metabolize some pesticides and, in some cases, residues may no longer be present in dead tissue.[116] Samples may need to be chilled or frozen to preserve evidence of a pesticide residue.[117] Moreover, documentation of the chain of custody of the samples will need to meet evidentiary standards.[118]

A plaintiff will also need to secure the spray records of all possible neighbors whose actions might have contributed to the damages.[119] With information on the dates of applications of pesticides, a plaintiff can match residue samples to a specific pesticide used by an applicator. Next, the plaintiff can document information on the wind and climatic conditions of the day of the pesticide application to show a relationship between the defendant’s action and the drift damages.[120] Further, the plaintiff may gather affidavits from other neighbors documenting the nonuse of the culprit pesticide to support the claim that the pesticide causing damage came from the defendant.

With the information from the samples and records of pesticide usage, the plaintiff would need one or more experts on crop damages to offer testimony as expert witnesses.[121] The experts would explain that the damage to the plants was consistent with the application of the culprit pesticide, how the pesticide affected the growth and development of the crop, and the amount of the financial loss suffered by the plaintiff.

For states in which courts have found that intangible invasions do not interfere with a landowner’s exclusive possession of land, plaintiffs may be able to distinguish that a deposit of spray has interfered with their possession. Agricultural producers use their properties to grow crops that they sell to others. Any action by an unauthorized person that denigrates a crop interferes with the owner’s exclusive right to use property for crop production. The unauthorized physical injury to plant material caused by a defendant’s spray drift constitutes an interference with a plaintiff’s exclusive possession.

With the careful documentation of spray drift damages, a plaintiff can distinguish the case from established precedents that declined to recognize trespasses by intangibles. This might start with an explanation on how an action in trespass for spray drift is different from actions concerning dust, electromagnetic fields, or vibrations. The evidence from the testing laboratory showing the presence of an unauthorized deposit of a pesticide would constitute evidence of an invasion of a plaintiff’s property with a deposit that caused physical damage. This evidence would distinguish spray drift from other types of invasions that lack deposits. Moreover, the physical damage would establish interference with a plaintiff’s exclusive possession. The evidence would enable the court to differentiate earlier precedents that declined to recognize a trespass action for entry of intangibles.

For example, a court concluded in a spray drift case from Vermont that the plaintiffs failed to demonstrate a “physical impact” on property so were not able to establish a cause of action in trespass.[122] This precedent does not preclude a subsequent plaintiff from developing evidence that documents a physical impact. Through an orderly documentation of the defendant’s actions, a plaintiff could establish injury to plants from a pesticide used by a defendant. Through the introduction of evidence of destruction of plants or stunting or physical alteration of growing plants, a plaintiff can present evidence of physical damage.[123] This suggests that in some spray drift cases, a plaintiff should be able to assemble the necessary documentation to meet the requirement of a physical impact.

Another problem with trespasses by intangibles such as dust has been the absence of “proof of damage to the invaded property.”[124] An allegation of trespass with evidence of a documented deposit of a pesticide interfering with exclusive possession that caused physical damage supports a trespass. A conclusion that the facts of a spray drift case present sufficient evidence to maintain an action is trespass would not change trespass law for most intangible invasions. Only invasions with a deposit clearly related to physical damages would qualify as a trespass.

Conclusion

Activities that generate intangible substances that are carried in the air onto properties of others present courts with difficult questions concerning liability for damages. Because different intangible substances pose greater dangers and inflict greater harm than others, some states have proceeded to differentiate particles from intangibles such as odors, noise, and radiation waves. The distinctions suggest that attempts to treat all intangible substances as similar are misplaced.[125] While ambient air may always contain intangible substances, this should not mean that unnatural concentrations of particles from human activities damaging properties of others cannot be a trespass.

Persons causing particles to invade properties of others to damage a possessory interest in property are trespassing. A Texas court concluded particles were a “thing” that could invade another’s property and constitute a trespass.[126] Evidence that the plaintiff photographed an intrusion and smelled and felt the spray drift led a Colorado court to conclude that the existence of particles was a trespass.[127] States adopting a “modern view” of trespass law allow recoveries for invasions of intangible substances if there are substantial damages or physical invasions.[128] Alternatively, the jurisprudence of at least one state provides that intangible particles constitute a trespass without a showing of actual or substantial harm.[129]

The existence of a nuisance cause of action should not impinge a plaintiff’s right to recover damages under trespass law.[130] This is particularly important whenever an anti-nuisance statute shields an invasion of spray drift or when a statute of limitations has expired for a nuisance claim of action but not for trespass. Although trespass law is not as amenable as nuisance for balancing equities, the rights of persons generating intangible substances and those claiming injuries from the substances may be reconciled under trespass law. This is accomplished under the “modern view” of trespass law by requiring a plaintiff to show substantial damages to a res or physical damage. State law may be expected to evolve so that plaintiffs suffering damages from an unreasonable invasion of an intangible substance can secure relief under trespass law.

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Copyright © 2014 Terence J. Centner.

* Terence J. Centner is Professor of Agricultural and Applied Economics at the University of Georgia and his teaching program involves environmental, public health, and agribusiness law courses. He focuses on policy analyses of current issues confronting agriculture and the environment.

[1]. It is estimated that one in seven people lack access to sufficient protein and energy in their diet. Charles J. Godfray et al., Food Security: The Challenge of Feeding 9 Billion People, 327 Sci. 812, 812 (2010).

[2]. It is estimated that by 2050 the world will need 70 percent more food due to increasing population and changes in diets. József Popp, Károly Petö & János Nagy, Pesticide Productivity and Food Security: A Review, 33 Agronomy Sustainable Dev. 243, 243 (2013). Population growth is also accompanied by an increase in the demand for water for the production of food crops. Henry Vaux Jr., Water for Agriculture and the Environment: The Ultimate Trade-off, 14 Water Poly 136, 137 (2012). Due to insufficient irrigation water, millions of people will be condemned to starvation. Id.

[3]. See Uwe A. Schneider et al., Impacts of Population Growth, Economic Development, and Technical Change on Global Food Production and Consumption, 104 Agric. Sys. 204, 205 (2011) (noting that intensification of water, fertilizer, pesticides, machinery, and labor has increased food production).

[4]. See David Molden et al., Improving Agricultural Water Productivity: Between Optimism and Caution, 97 Agric. Water Mgmt. 528, 530 (2010) (observing potential crop production gains from irrigated crops by reducing plant transpiration).

[5]. See Godfray et al., supra note 1, at 813 (noting the Green Revolution using plant breeding to increase crop production); Eyal Fridman & Dani Zamir, Next-generation Education in Crop Genetics, 16 Current Op. Plant Bio. 218, 219 (2012) (reporting on the dramatic increases in yields due to hybrids); Mark Tester & Peter Langridge, Breeding Technologies to Increase Crop Production in a Changing World, 327 Sci. 818, 818 (2010) (calculating a linear increase in food production globally of 32 million metric tons per year due to breeding and agronomic improvements).

[6]. Genetically modified crops can decrease losses from pests and increase yields by eliminating competition from weeds. See Parvaiz Ahmad et al., Role of Transgenic Plants in Agriculture and Biopharming, 30 Biotech. Advances 524, 525 (2012) (identifying wheat, rice, and soybean as important transgenic crops that have increased food supplies).

[7]. Technologies enable agricultural production to be intensified through the employment of more water, fertilizer, pesticides, and machinery. Schneider et al., supra note 3, at 205.

[8]. For example, improvements in a crop’s ability to use less water or saline water may lead to greater yields. Tester & Langridge, supra note 5, at 818 (reporting ideas for production increases).

[9]. See Charles M. Benbrook, Impacts of Genetically Engineered Crops on Pesticide Use in the U.S —The First Sixteen Years, 24 Envtl. Sci. Eur. 1, 1–13 (2012) (reporting on genetically engineered plants and the usage of pesticides in the production of food crops).

[10]. See, e.g., Adriane J. Busby & Gabriel Eckstein, Organophosphates, Friend and Foe: The Promise of Medical Monitoring for Farm Workers and Their Families, 27 UCLA J. Envtl. L. & Pol’y 39, 50–68 (2009) (discussing the protection of farm workers from pesticides).

[11]. 7 U.S.C. § 136j(a)(1) (2014). However, nonregistered pesticides may be produced and exported to other countries. 7 U.S.C. § 136o (2014). See Michael Holley, The EPA’s Pesticide Export Policy: Why the United States Should Restrict the Exports of Unregistered Pesticides to Developing Countries, 9 N.Y.U. Envtl. L.J. 340, 343–48 (2001) (discussing the requirements for exporting unregistered pesticides).

[12]. 7 U.S.C. § 136d(b)-(c) (2014). See Christopher M. Iaquinto, Note, A Silent Spring in Deep Water?: Proposing Front-end Regulation of Dispersants after the Deepwater Horizon Disaster, 39 B.C. Envtl. Aff. L. Rev. 419, 437 (2012) (noting the ability of EPA to cancel or suspend the registration of a pesticide).

[13]. 7 U.S.C. § 136j(a)(2)(G) (2014). See Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180, 188 (2d Cir. 2010) (finding that the district court did not explain how it found the spraying to be in compliance with the FIFRA label).

[14]. See, e.g., John Wargo, Our Children's Toxic Legacy: How Science and Law Fail to Protect Us from Pesticides, Yale Univ. Press, 1998 (arguing that the U.S. government’s policies on pesticides have neglected adequate consideration of exposures and the risks faced by children).

[15]. See, e.g., Theodore A. Feitshans, An Analysis of State Pesticide Drift Laws Revisited, 20 San Joaquin Agric. L. Rev. 23, 23–29 (2010–2011) (recounting state regulations governing pesticide spray drift); Theodore A. Feitshans, An Analysis of State Pesticide Drift Laws, 9 San Joaquin Agric. L. Rev. 37, 40–67 (1999) (introducing the issue of state regulation of pesticide spray drift).

[16]. 40 C.F.R. § 158.130(g) (2014) (requiring data that evaluates pesticide spray drift derived from studies of droplet size spectrum and spray drift field evaluations). Further regulatory provisions delineate a table for determining spray drift data. 40 C.F.R. § 158.1100 (2014).

[17]. See Constantino Vischetti et al., Measures to Reduce Pesticide Spray Drift in a Small Aquatic Ecosystem in Vineyard Estate, 389 Sci. Total Env’t 497, 497 (2006) (reporting on the need to employ spray drift management to reduce damages from drift).

[18]. Plaintiffs have the burden of proving that a pesticide applicator failed to follow directions. See Orkin Exterminating Co. v. Carder, 575 S.E.2d 664, 666 (Ga. Ct. App. 2002) (affirming damages for pesticide applications where evidence showed the defendant had failed to comply with label instructions); Kleiss v. Bozdech, 811 N.E.2d 330, 354 (Ill. Ct. App. 2004) (observing it would be a breach of duty to fail to follow label instructions in the application of pesticides); Bennett v. Larsen Co., 348 N.W.2d 540, 549 (Wis. 1984) (overturning a judgment that dismissed a complaint alleging a breach of a duty of care for pesticide users established by administrative regulation).

[19]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 700–01 (Minn. 2012) (considering claims for losses from spray drift); see also Alexandra B. Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes, 32 Ecology L.Q. 763, 792–805 (2005) (discussing liability for property damage, crop damage, and/or personal injury).

[20]. See, e.g., Macalpine v. Hopper, No. 10CV220, *9–10 (Colo. Dist. Ct., Delta Cnty., July 5, 2012) (enjoining spraying because the defendants’ drift caused throat and lung irritation and difficulties in breathing).

[21]. See, e.g., United States v. Tropical Fruit, S.E., 96 F. Supp. 2d 71, 76–77 (D.P.R. 2000) (finding a violation of FIFRA due to the use of a registered pesticide in a manner inconsistent with its labeling). As scientists search for responses for herbicides that may be used on herbicide-resistant weeds, they may resort to herbicides such as dicamba that are known to present vapor drift damages. J. Franklin Egan & David A. Mortensen, Quantifying Vapor Drift of Dicamba Herbicides Applied to Soybean, 31 Envtl. Toxicol. & Chem. 1023, 1023 (2012) (studying vapor drift from applications of dicamba due to past experiences with damages to neighboring crops).

[22]. See, e.g., Jacobs Farm/Del Cabo, Inc. v. W. Farm Serv., Inc., 119 Cal. Rptr. 3d 529, 551 (Cal. Ct. App. 2010) (concluding that plaintiff’s nuisance claim was viable for pesticide volatilization that harmed neighboring organic herbs); Johnson, 817 N.W.2d at 701 (precluding a trespass claim but finding evidence of a nuisance for damages related to spray drift).

[23]. See Terence J. Centner, Securing Recompense under Nuisance Law for Crop Damages from Pesticide Applications, 432 Sci. Total Env’t 78, 79–80 (2012) (discussing nuisance law actions for pesticide drift).

[24]. See Tropical Fruit, S.E., 96 F. Supp. 2d at 77–78 (alleging a violation of the pesticide label requirements); Ark. State Plant Bd. v. Bullock, 48 S.W.3d 516, 520 (Ark. 2001) (upholding a penalty imposed for violating a state regulation by allowing drift to enter nontarget properties); Patterson Flying Serv. v. Dept. of Pesticide Regulation, 74 Cal. Rptr. 3d 290, 303–04 (finding substantial drift from the target site in conflict with the proscription of the pesticide’s labeling requirement); In re N.C. Pesticide Bd., 509 S.E.2d 165, 169 (N.C. 1998) (acknowledging a violation of state pesticide regulations by applying a pesticide inconsistent with its label); Henderson v. Dept. of Agric., 875 P.2d 487, 489–90 (Or. Ct. App. 1994) (finding that the applicator and his employer applied pesticides in a manner inconsistent with the labels causing drift onto neighboring properties); see also Feitshans (1999), supra note 15, at 40–67 (summarizing liability for spray drift under statutory and regulatory authority).

[25]. See, e.g., Mangrum v. Pigue, 198 S.W.3d 496, 500 (2004) (holding that the aerial spraying of an herbicide is not an ultrahazardous activity so the plaintiff could not maintain a strict liability cause of action); Dow Chem. Co. v. Ebling, 723 N.E.2d 881, 908–09 (Ind. Ct. App. 2000) (weighing factors pertaining to ultrahazardous activity and deciding that strict liability was not applicable to the use of the pesticide); see also Keith Cunningham-Parmeter, A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure, 28 N.Y.U. Rev. L. & Soc. Change 431, 478–80 (2004)  (discussing liability for pesticide drift under strict liability for abnormally dangerous activities); Robert W. Luedeman, A Tale of Three States: Liability for Overspray and Chemical Drift Caused by Aerial Application in Arkansas, Louisiana, and Mississippi, 10 S.J. Agric. L. Rev. 121, 128 (2000) (observing that strict liability seems to be “more interesting to scholars than anyone else”).

[26]. Every state has enacted anti-nuisance legislation known as right-to-farm laws. Terence J. Centner, Governmental and Unconstitutional Takings: When Do Right-to-Farm Laws Go Too Far?, 33 B.C. Envtl. Aff. L. Rev. 87, 87 (2006). See Stickdorn v. Zook, 957 N.E.2d 1014, 1024 n.5 (Ind. Ct. App. 2011) (observing that the state’s right-to-farm law offers a defense against nuisance actions); Kanna v. Benton Cnty., No. 17270-8-III, 1999 WL 219783, *9-10  (Wash. Ct. App. 1999)  (observing that pesticide drift could be lawful under the state’s right-to-farm law).

[27]. Bates v. Dow Agrosci., LLC, 544 U.S. 431, 447 (2005) (preempting state labeling requirements that are different from or in addition to labeling and packaging requirements).

[28]. Trial courts have not been very receptive to claims for spray drift. See Mangrum, 198 S.W.3d at 500–03 (granting a directed verdict to the defendants on the negligence claim due to the absence of any evidence of a breach of a duty of care and no proximate causation); Kleiss v. Bozdech, 811 N.E.2d 330, 343–44 (Ill. Ct. App. 2004) (reversing a trial court’s finding that there was no negligence in the application of a pesticide); Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012) (reversing a trial court's finding that there was no negligence in the application of a pesticide); Lesiak v. Cent. Valley Agric. Coop., Inc., 808 N.W.2d 67, 86 (Neb. 2012) (reversing a trial court’s finding that there was no negligence in the application of a pesticide).

[29]. See, e.g., Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255, 1263 (S.D. Mo. 2001) (finding that stray voltage contamination causing physical damage to property presented evidence of a trespass); Ramik v. Darling Int’l, Inc., 60 F. Supp. 2d 680, 688 (S.D. Mich. 1999) (finding that noxious odors without damage to the res does not constitute a trespass).

[30]. While state law and judicial decisions agree with this requirement, it does not address the issue of the character of invasions of intangible objects and their effect on exclusive possession. See In re Chi. Flood Litig., 680 N.E.2d 265, 277 (Ill. 1997) (concerning a physical invasion by water); Wendiger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. Ct. App. 2003) (denying a trespass claim for odors); Beal v. W. Farmers Elec. Coop., 228 P.3d 538, 541 (Okla. Ct. Civ. App. 2010) (dismissing a trespass claim for stray electricity); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (rejecting a trespass claim for odors due to the absence of “an invasion by a physical, tangible thing”); John Larkin, Inc. v. Marceau, 959 A.2d 551, 556 (Vt. 2008) (rejecting a trespass claim involving air particulates).

[31]. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex. 2008) (noting injury may be slight or no damage at all); Johnson, 817 N.W.2d at 704 (noting no damages were required for trespass actions); Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 201) (noting that trespass actions do not require damages).

[32]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012) (noting the Restatement (Second) of Torts approves trespass actions for entry of things); Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 785 (Wash. 1985) (quoting a comment from § 158 of the Restatement (Second) of Torts on what constitutes trespass).

[33]. See, e.g., State v. Courchesne, 998 A.2d 1, 103 (Conn. 2010) (noting that “the fact finder may infer intent from the natural consequences of one’s voluntary conduct”) (citing State v. Cobb, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, (2000)); In re Methyl, Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 379 F. Supp. 2d 348, 417–18 (S.D.N.Y. 2005) (noting that intent under trespass does not require consequences that are desired); Brutsche v. Kent, 193 P.3d 110, 116 (Wash. 2008) (citing § 8A of the Restatement (Second) of Torts under which intent infers consequences that are substantially certain to result).

[34]. See, e.g., Royal Ins. Co. v. Pinette, 756 A.2d 520, 523 (Me. 2000) (noting that defendant’s mistake, inadvertence, or negligence is immaterial if there was intent to be on the land).

[35]. Judicial decisions on intangible objects focus on noise, odor, and light. See, e.g.,San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (describing intangible invasions to include “noise, odor, or light”); Abington Ltd. P’ship v. Talcott Mountain Sci. Ctr. for Student Involvement Inc., 657 A.2d 732, 734 (Conn. Ct. App. 1994) (noting “noise, odor, or light” as intangible intrusions); Ramik v. Darling Int’l Inc., 60 F. Supp. 2d 680, 687 (E.D. Mich. 1999) (identifying intangible intrusions to include “noise, odor, or light”) (citing Wilson v. Interlake Steel Co., 32 Cal.3d 229, 233 (1982)). The Fifth Circuit Court of Appeals found that “airborne particles are neither direct nor tangible.” Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 405 (5th Cir. 2003). See Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 220 (Mich. Ct. App. 1999) (discussing differences between tangible and intangible invasions); Johnson, 817 N.W.2d at 702 (finding that the particulate matter of spray drift was an intangible substance).

[36]. See infra notes 109–130 and accompanying text.

[37]. See Ramik, 60 F. Supp. 2d at 688 (holding that odor without damage to the res is not an interference with possession and therefore does not constitute a trespass); Johnson, 817 N.W.2d at 702–03 (applying the results of an odor case to allegations of pesticide spray drift); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (finding “that odors cannot give rise to a trespass claim”).

[38]. See Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (considering allegations of a trespass by airborne dust and blasting tremors).

[39]. See Maddy v. Vulcan Materials Co., 737 F. Supp. 1528, 1540 (D. Kan. 1990) (observing that smoke without substantial damage to property is not a trespass); Paris v. Lussier, No. 2010-034, 2010 WL 7791942 (Vt. July 16, 2010) (considering allegations of a trespass by smoke, particulates, and/or carbon monoxide).

[40]. See Wilson v. Interlake Steel Co., 649 P.2d 922, 924 (Cal. 1982) (finding that noise not damaging property does not constitute a trespass); Maddy, 737 F. Supp. at 1540 (observing that noise without substantial damage to the plaintiff’s property is not a trespass).

[41]. See Barnett v. Conn. Light & Power Co., 900 F. Supp. 2d 224, 245–46 (D. Conn. 2012) (finding that alleged intrusions by intangible electromagnetic fields did not constitute a trespass).

[42]. See infra notes 45–65 and accompanying text.

[43]. See infra notes 66–84 and accompanying text.

[44]. See infra notes 87–110 and accompanying text.

[45]. Trespass is identified as an interference with exclusive possession while nuisance interferes with use and enjoyment. Martin v. Reynolds Metals Co., 342 P.2d 790, 792 (Or. 1959). This leads to a conclusion that intrusions interfering with the right to exclusive possession of property involve the law of trespass while intrusions to the interest in use and enjoyment of property involve nuisance law. Adam Mossoff, Spam—Oy, What a Nuisance, 19 Berkeley Tech. L.J. 625, 646 (2004). See San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (finding intangible objects are not trespasses because they are actionable under nuisance law); John Larkin, Inc. v. Marceau, 959 A.2d 551, 553–54 (Vt. 2008) (noting that smoke, gas, noise, and invisible particles are only actionable as a private nuisance).

[46]. See, e.g., Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 479  (S.C. 2013) (observing that intangible invasions giving rise to nuisances cannot give rise to a trespass claim); Padilla v. Lawrence, 685 P.2d 964, 971 (N.M. Ct. App. 1984) (observing that intangible intrusions such as noise and odor are actionable under nuisance law rather than trespass) (citing Wilson v. Interlake Steel Co., 32 Cal.3d 229, 233 (1982)).

[47]. Johnson v. Paynesville Farmers Union Coop Oil Co., 817 N.W.2d 693, 702–03 (Minn. 2012).

[48]. Id. at 702 (noting that the disruption to a landowner’s exclusive possessory interest is different for intangible spray drift).

[49]. Id. at 704.

[50]. Id. at 702. (citing Wendiger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. Ct. App. 2003)).

[51]. Id. at 703–05 (citing Borland v. Sanders Lead Co., 396 So. 2d 523 (Ala. 1979) and Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782 (Wash. 1985)).

[52]. Wendiger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. Ct. App. 2003).

[53]. Johnson v. Paynesville Farmers Union Coop Oil Co., 817 N.W.2d 693, 705 (Minn. 2012).

[54]. Barnett v. Conn. Light & Power Co., 900 F. Supp  2d 224, 245–46 (D. Conn. 2012).

[55]. Id.

[56]. Id. at 246.

[57]. Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 221 (Mich. Ct. App. 1999) (rejecting the modern view of trespass that would eliminate the requirement of a direct invasion by a tangible object).

[58]. Id.

[59]. See Restatement (Second) of Torts§ 821D cmt. e (1977); see also Lhotka v. U.S., 114 F.3d 751, 754 (8th Cir. 1997) (finding the plaintiffs had established a prima facie case in both nuisance and trespass); Borland v. Sanders Lead Co., 369 So. 2d 523, 527 (Ala. 1979) (maintaining that the same conduct of defendants may result in actionable invasions under both nuisance and trespass law); Cook v. Rockwell Int’l Corp., 564 F. Supp. 2d 1189, 1198 (D. Colo. 2008) (acknowledging that both the nuisance and trespass actions supported damages).

[60]. Borland, 369 So. 2d at 527 (noting that nuisance and trespass are separate torts for the protection of different interests invaded by a defendant.

[61]. Trespasses may involve invasions causing an interference with possession of property while nuisances consider invasions of personal rights and privileges. Lhotka v. U.S., 114 F.3d at 753–54.

[62]. See Hoery v. U.S., 64 P.3d 214, 222 (Colo. 2003) (finding that “[t]he daily migration and presence of those chemicals on Hoery’s property constitute the continuing torts of trespass and nuisance”); Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1234 (Utah 1995) (acknowledging that the plaintiffs could sue in trespass and nuisance); Stickdorn v. Zook, 957 N.E.2d 1014, 1024 (Ind. Ct. App. 2011) (allowing both nuisance and trespass actions for damages).

[63]. See Wilson v. Interlake Steel Co., 649 P.2d 922, 925 (Cal. 1982) (observing that a trespass requires an invasion of exclusive possession while nuisance requires an interference with private use and enjoyment of property (quoting Prosser, Torts § 89 (4th Ed. 1971)).

[64]. The most significant statutory defense that could affect actions for damages from spray drift involve state right-to-farm laws that operate to defeat nuisance lawsuits. See Kanna v. Benton Cnty.,, No. 17270-8-III, 1999 WL 219783, *9-10 (Wash. Ct. App. 1999) (observing that defendant could be shielded by the state’s right-to-farm law); Stickdorn v. Zook, 957 N.E.2d 1014, 1024 (Ind. Ct. App. 2011) (observing that the state’s anti-nuisance law offers a defense against nuisance actions but did not apply given the facts of the case).

[65]. In some states, the statute of limitations for nuisance is shorter than for trespass actions. See Ex Parte Brian Nelson Excavating, LLC, 25 So. 3d 1143,1146 (Ala. 2009) (noting that there is a two-year statute of limitations for nuisance actions, but six year statute of limitations for trespasses).

[66]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012); John Larkin, Inc. v. Marceau, 959 A.2d 551, 554 (Vt. 2008).

[67]. See John Larkin, Inc., 959 A.2d at 554 (observing that absent a demonstrated physical impact, the airborne particles had not interfered with “the landowner’s right to exclusive possession of the land”).

[68]. See Johnson, 817 N.W.2d at 701.

[69]. See Kramer v. Angel’s Path, LLC, 882 N.E.2d 46, 56 (Ohio Ct. App. 2007) (declining to find that light involved a physical intrusion needed to support a trespass allegation).

[70]. See Macalpine v. Hopper, No. 10CV220, at *3 (Colo. Dist. Ct., Delta Cnty., July 5, 2012) (finding that the plaintiffs had felt the spray drift); Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 406 (5th Cir. 2003) (acknowledging that airborne particulates can show a substance entering property to support a cause of action in trespass).

[71]. Macalpine, at *3.

[72]. Johnson, 817 N.W.2d at 702.

[73]. Id. at 701–02 (citing James A. Henderson, Jr. et al., The Torts Process 386 (7th ed. 2007)).

[74]. Id. at 705 (observing there was no claim that a tangible object invaded plaintiffs’ property).

[75]. Id. at 713 (finding the plaintiffs still had a viable nuisance claim).

[76]. 959 A.2d 551 (Vt. 2008).

[77]. Id. at 556.

[78]. Id.

[79]. Id. at 555.

[80]. No. 2010-034, 2010 WL 7791942, *1 (Vt. July 16, 2010)

[81]. Id. at *3.

[82]. Id.

[83]. Id.

[84]. No. 10CV220 (Colo. Dist. Ct., Delta Cnty., July 5, 2012).

[85]. Id. at *2.

[86]. Id. at *5.

[87]. See supra note 29 and accompanying text. See also Randall Bezanson & Andrew Finkelman, Trespassory Art, 43 U. Mich. J.L. Reform 245, 290 (2010) (concluding that the new rubric for intangible trespasses under Oregon law requires substantial injury); Woodrow Barfield, Commercial Speech, Intellectual Property Rights, and Advertising Using Virtual Images Inserted in TV, Film, and the Real World, 13 UCLA Entertain. L. Rev. 153, 171 (2006) (noting that a damage requirement applied to an invasion of noise); Borland v. Sanders Lead Co., 396 So. 2d 523, 529 (Ala. 1979) (delineating four requirements for trespasses involving intrusions of particulate matter); Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 390 (Colo. 2001) (requiring physical damage to property).

[88]. See, e.g., Borland, 396 So. 2d at 529 (delineating a requirement of substantial damages to a res); In re Worldcom, Inc., 546 F.3d 211, 219 (8th Cir. 2008) (noting that substantial damage to land is needed before a light pulse could be found to effect a trespass).

[89]. See, e.g., Van Scoy v. Shell Oil Co., No. 95-15961, 1996 WL 563449, *1-2 (9th Cir. 1996) (noting the absence of proof of excess material being deposited on plaintiff’s property so that there was no action in trespass).

[90]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 703 (Minn. 2012); John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008).

[91]. See, e.g., John Larkin, Inc., 959 A.2d at 551. See also supra note 30.

[92]. 396 So. 2d 523, 527–28 (Ala. 1979). The Borland court relied on the earlier Martin v. Reynolds Metals Co. case, 342 P.2d 790, 794 (Or. 1959).

[93]. 396 So. 2d at 529.

[94]. Id. at 528–29 (relying on Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959)).

[95]. Id. at 529.

[96]. See, e.g., Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (discussing the modern view of trespass law for airborne dust and the requirement of “proof of damage to the invaded property”) ; Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 689 (Wash. 1985) (declining to cling to outdated doctrines and recognizing the abandonment of distinguishing between direct and indirect invasions).

[97]. See Bradley, 709 P.2d at 690 (accepting the Borland elements of trespass law that include substantial damages to the res).

[98]. See, e.g., id. at 691 (accepting and approving the four elements set forth in Borland for airborne particulates); In re Worldcom, Inc., 546 F.3d 211, 219 (8th Cir. 2008) (noting that invasions by intangibles may not interfere with possession unless there is substantial damage to the res). The justification for requiring substantial damage to a res for intangible invasions is to preserve trespass’s focus on interferences with rights of possession. Id.

[99]. See In re Worldcom, Inc., 546 F.3d at 219 (noting that a trespass of light pulses would require an allegation of substantial damage to land).

[100]. See San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (noting that intangible intrusions of light, noise, and odor alone were not trespasses); Ramik v. Darling Int’l, Inc., 60 F. Supp. 2d 680, 688 (S.D., Mich. 1999) (finding odors were not trespasses); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (finding that odors do not give rise to a trespass claim).

[101]. See Barnett v. Conn. Light & Power Co., 900 F. Supp. 2d 224, 239 (D. Conn. 2012) (noting that an intangible intrusion of an electromagnetic current is not a trespass). Yet if a plaintiff pleads a physical presence causing damages, stray electric voltage may raise a claim for trespass. Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255, 1263 (S.D. Mo. 2001) (observing that the claim of accelerated corrosion of metal structures and other damages presented evidence of a trespass).

[102]. See Beal v. W. Farmers Elec. Coop., 228 P.3d 538, 541 (Okla. Ct. App. 2009) (noting that intangible invasions must cause physical damage to property) (citing 75 Am. Jur. 2d Trespass § 27 (2000)).

[103]. See id. (coupling exclusive possession with an intentional invasion, foreseeability, and substantial damage to property for intangible intrusions). An interference with exclusive possession may require substantial damages. See Paris v. Lussier, No. 2010-034, 2010 WL 7791942 (Vt. July 16, 2010), *1 (differentiating intangible trespass actions to require substantial damages).

[104]. Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1148–49 (10th Cir. 2010).

[105]. Id.

[106]. Id. at 1149.

[107]. Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255,at 1263 (S.D. Mo. 2001).

[108]. Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400 (5th Cir. 2003).

[109]. Id. at 406. The court rejected the argument that substantial damage to the property was required. Id.

[110]. Id. at 403 (affirming the jury verdict that defendant was liable for a trespass).

[111]. Macalpine, at *6 .

[112]. Id. at *5.

[113]. See Mayeux v. Cane-Air, Inc., 426 So. 2d 305, 308 (5th Cir. 1983) (involving damages to a soybean crop); Schoppe v. Applied Chems. Div., Mobley Co., Inc., 418 So. 2d 833, 835 (Miss. 1982) (considering damage to cotton and soybean crops).

[114]. See John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008) (finding that in the absence of “a demonstrated physical impact” on plaintiffs’ property, there could not be a trespass).

[115]. U.S. Dep’t of Agric., 2010 – 2011Pilot Study Pesticide Residue Testing of Organic Produce, at 2, Nov. 2012 (last visited Feb. 3, 2014) (noting the use of testing to determine the presence of pesticide residues).

[116]. A&L Can. Labs., Inc., Pesticide Residue Analysis. A&L Can. Labs. Inc., at 2 (last visited Feb. 3, 2014) (delineating a sampling procedure for plant tissues).

[117]. A&L Can. Labs., Inc., id.; European Comm’n Health & Consumer Protection Directorate-General, Guidance document on analytical quality control and validation procedures for pesticide residues analysis in food and feed, SANCO/12571/2013, Nov. 19, 2013, at 2 (last visited Feb. 3, 2014).

[118]. See, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2239 (2012) (delineating conventional chain-of-custody evidence).

[119]. Applicators of restricted use pesticides will have these records due to a requirement under FIFRA. See 7 C.F.R. § 110.3 (2013).

[120]. See F.M. Fishel & J.A. Ferrell, Managing Pesticide Drift, Univ. of Fla. Inst. of Food and Agric. Sci. Extension, 3–5 (last visited Feb. 3, 2014) (discussing how wind, air temperature, and relative humidity affect spray drift).

[121]. See Mayeux v. Cane-Air, Inc., 426 So. 2d 305, 308 (5th Cir. 1983) (demonstrating how an expert witness testifies to establish damage to a crop from exposure to a pesticide); Schoppe v. Applied Chems. Div., Mobley Co., Inc., 418 So. 2d 833, 835 (Miss. 1982) (using expert witnesses to establish the amount of loss from pesticide drift).

[122]. John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008).

[123]. The unauthorized physical changes to plant materials caused by a defendant’s spray drift, identifiable through testing and records of spray applications, would establish that the defendant’s use of a pesticide caused the damage.

[124]. Darney v. Dragon Products Co., LLC, 994 A.2d 804, 807 (ME 2010).

[125]. E.g., Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 702 (Minn. 2012) (equating spray drift with smells).

[126]. Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 406 (5th Cir. 2003).

[127]. Macalpine v. Hopper, No. 10CV220, *9–10 (Colo. Dist. Ct., Delta Cnty., July 5, 2012).

[128]. However, many states have rejected the modern theory. See In re Worldcom, Inc., 546 F.3d 211, 217 (8th Cir. 2008) (discussing the modern view of trespass that recognizes intangible invasions but finding the invasion had not caused substantial damage to plaintiff’s land); Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (considering the modern view of trespass for an intrusion of dust particles but finding no viable trespass claim given the absence of proof of damage to the invaded property); John Larkin, Inc. v. Marceau, 959 A.2d 551, 554–55 (Vt. 2008) (acknowledging the modern theory of trespass allowing claims for intangible airborne particulates but dismissing the trespass claim due to the absence of a physical impact interfering with exclusive possession).

[129]. See In re Tenn. Valley Auth. Ash Spill Litig., 805 F. Supp. 2d 468, 484 (E.D. Tenn. 2011) (finding that invasions of intangible particles in Tennessee are trespasses without a showing of actual or substantial harm); Stephens v. Koch Foods, LLC, 667 F. Supp. 2d 768, 794–96 (E.D. Tenn. 2011) (adopting the modern view of trespass to allow a claim for trespass of gasses to proceed).

[130]. See Restatement (Second) of Torts§ 821D cmt. e (1977).

Copyright 2014 Terence J. Centner. All rights reserved.

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Geographic Indications as a Tool to Promote Sustainability? Café de Colombia and Tequila Compared

Jennifer Barnette*

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Geographical indications (GIs) are a type of intellectual property right associated with place-based names. GIs are used to identify products that come from certain regions and have particular characteristics that indicate the product’s quality or reputation (e.g. “Champagne,” “Roquefort”).[1] While GIs are protected by various legal principles and statutes—including sui generis GI laws, trademarks, certification marks, and collective marks—all GIs function to certify that a product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation due to its geographical origin.[2] While the oldest and most developed systems of GI protection are found in Europe, other developing countries have recently begun implementing GI legislation domestically and seeking protection in international trade agreements, with the goals of promoting rural development and protecting local heritage and the natural environment.[3]

Geographic indications, when managed to support the interests of local farmers, can bring sustainable economic development to developing countries. However, benefits to farmers are eroded when the focus shifts from regional uniqueness to corporate profits. Photo credit to krembo1.

As technological advances in communication and transportation continue to foster international economic transactions, the global distribution of agricultural products has increased competition among developing countries. In our globalized world of industrial agriculture, where large-scale producers from developed countries often benefit from government subsidies, agricultural producers in emerging economies are forced to achieve greater product differentiation to stand out from competitors and position themselves on more profitable market segments.[4] As part of a comprehensive strategy to increase product differentiation and charge higher prices in the international market, GIs offer a promising avenue for enhancing the value of local products.[5] Indeed, GI products tend to have a reputation for higher quality and therefore command a higher price than similar products that lack unique place-based characteristics.[6]

Will the Wilderness Act Be Diluted in Drakes Estero?

Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*

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<<< See Update 1, November 29, 2012, Below >>>
<<< See Update 2, December 10, 2012, Below >>>

Introduction and Background

Drakes Bay Oyster Company (DBOC)[1] runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California.[2] In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore.[3] This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased.[4] Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states.[5] DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness.[6] Its authorization to operate is set to expire before the end of 2012.[7]

Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.

Acceptability of the Deschutes Groundwater Mitigation Program

Eva Lieberherr*

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“We can’t create water or increase the supply. We can only hold back and redistribute what there is.”[1]

In the last decade, the Deschutes River Basin in Central Oregon has faced growing urbanization, shifting water uses, and increasing ecosystem health concerns. This has led the Oregon Water Resources Department to experiment with a voluntary market-based approach to water management. To meet groundwater demands while maintaining instream flows and upholding prior water allocations, the Oregon Water Resources Department developed the Groundwater Mitigation Program in 2002. A program will be more effective and viable if it is deemed acceptable by its participants. As such, this research focuses on how acceptable the Groundwater Mitigation Program is to its participants.[2] Comparing two hypothetical alternative scenarios to the Groundwater Mitigation Program, I determine acceptability by the following criteria: usability, accountability, enforcement, equity, information dissemination, cost-effectiveness, and utility. The research incorporates a mixed-method approach, conducting interviews and surveys of program participants. Results indicate that although the Groundwater Mitigation Program is more acceptable than the proposed alternatives, a lengthy groundwater permitting process, passive enforcement, and a lack of information nonetheless make the program unfavorable to its participants. Increased awareness could promote acceptance of the Groundwater Mitigation Program, and at the same time, contribute to the effectiveness of the program.

The Deschutes River near Bend, Oregon. Photo credit to MonkeyBoy22.

BP’s Well Evaded Environmental Review: Categorical Exclusion Policy Remains Unchanged

Jaclyn Lopez*

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Introduction

Sea snot, tar balls, and designated oiled carcass holding locations are just a few of the many appalling and lingering consequences of the failure of BP’s Macondo well in the deep waters of the Gulf of Mexico. The catastrophe began on April 20, 2010 when the well’s blowout preventer failed and caused a fiery explosion aboard the Deepwater Horizon, the oil rig owned by Transocean and leased and operated by BP. The accident killed eleven rig workers and led to the largest oil spill in American history. Plugging the well took three months plus an additional two months to kill the well. Called an unprecedented environmental disaster by some and the Crime of the Century by others, BP’s oil spill resulted in an estimated total discharge of 4.9 million barrels (205.8 million gallons) of oil, largely unmitigated, into the Gulf of Mexico. While the precise cause of the well’s failure is still unknown, what has become evident is that the drilling plans for BP’s broken well never underwent full environmental review – a review that could have helped prepare the company and local and federal governments for such an eventual catastrophe.

Smoke plumes from spill-response crews gathering and burning oil in the Gulf of Mexico near the site of the leaking Macondo well. Photo taken June 22, 2010. Photo credit to Dr. Oscar Garcia / Florida State University.

A National Injustice: The Federal Government’s Systematic Removal and Eradication of an American Icon

Bruce Wagman[*] & Lisa McCurdy[**]

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Brutal captures and deaths of American wild horses are occurring on the range. This is not a fictional western gone bad but federal policy. The government tries to justify this cruelty with junk science and is sheltered in its actions by procedural barriers and judicial deference. For nearly four decades, federal contractors have been capturing wild horses and burros across the western United States under the guise of “management” pursuant to the Wild Free-Roaming Horses and Burros Act.[1] The horses are often chased down by helicopters, sometimes for miles through rough terrain in the heat of summer, lassoed, and forced to the ground and then into trailers.

Wild horses are driven down a steep slope by a helicopter during the Twin Peaks Roundup, August 15, 2010. Video credit to Humane Observer.

Promoting the Urban Homestead: Reform of Local Land Use Laws to Allow Microlivestock on Residential Lots

 

Mary Wood, Jeremy Pyle, Naomi Rowden, & Katy Irwin*

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Introduction

Over the past several decades, Americans have divorced themselves from the ages-old endeavor of growing and harvesting their own food. During this era, the food system has undergone a radical change from its traditional makeup that predominated even just a few generations ago. Today, global distribution systems transport food thousands of miles before it reaches its final destination. While this model provides convenience and selection for consumers, the consolidation and centralization of food production has come at a high price. The U.S. food system is highly polluting, vulnerable to adversity, unsustainable, and, in some cases, unsafe for consumers.[1] For these and other reasons, citizens are increasingly urging their local officials to initiate regulatory and policy changes to encourage local food production on both public and private property. This Article explores some of the law and policy considerations for reforming city codes to allow for “urban homesteading” on residential city lots, focusing in particular on regulations pertaining to husbandry of microlivestock.

Backyard goat.  Photo credit to pinkhippodesign.

Implementing SB 375: Promises and Pitfalls

Heather Haney*

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Introduction

On September 30, 2008, California passed the Sustainable Communities and Climate Protection Act, or SB 375. The legislation was the first in the country to link land use, transportation, and housing planning with global warming. The nation’s attention was once again focused on California’s efforts to address global climate change through innovative regulation.[1] Three years before, the legislature had passed The Global Warming Solutions Act of 2006, or AB 32, which requires the state to reduce greenhouse gas (GHG) emissions to 1990 levels no later than 2020.[2] Since passenger vehicles account for approximately thirty percent of the state’s total emissions and their numbers have increased drastically from 1990 levels,[3] it was generally accepted that without improved land use and transportation policies, California would not be able to achieve the goals of AB 32.[4] The general concept is that movement away from low-density suburban “sprawl” and toward higher-density, transit-oriented development that is less dependent on the private automobile would lead to lower GHG emissions.

SB 375 has three goals: (1) to use the regional transportation planning process to help achieve the goals of AB 32; (2) to provide possible streamlining of California Environmental Quality Act (CEQA) procedures for residential projects, helping achieve the GHG emissions reduction goals; and (3) to coordinate the regional housing needs allocation process with the regional planning process. It builds upon existing regulatory structures and seeks to incentivize more compact development through project funding and process streamlining.

This Article will discuss the legislative history behind SB 375, the current language of the statute, what compromises were made in developing its final language, what potential obstacles may arise in implementing the law, and suggestions on additional legislative and administrative steps that should be taken to practically achieve its goals.

A Framework for Energy Independence via Solar Hosting Farms

Raymond Marshall*

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Introduction

Imagine for a moment that you live in an apartment building, rent commercial space in a shopping center, lease office space in a building, own a house in a densely wooded area, or manage a government agency in a building that does not receive much sunlight due to surrounding structures. Now imagine that you want to purchase solar panels and install them on your premises in order to have some degree of energy independence.

The scenarios mentioned above are real-life examples of barriers that make it more difficult for consumers to use solar panels at their home or business. The first three scenarios represent a barrier that is caused by a lack of ownership. Tenants must have a landlord’s permission to install solar panels on the landlord’s property. Even if the landlord were amenable to this arrangement, tenants will likely choose not to install solar panels if they plan to relocate in a few years. The last two scenarios represent another type of barrier: insufficient sunlight for energy generation.

An Argument For Placing Logging Roads Under the NPDES Program

Kevin Boston & Matt Thompson *

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Introduction

Recent judicial decisions addressing the impact of forest management on water quality suggest that EPA’s clarification of regulations under the Clean Water Act (CWA) may become increasingly important. Courts currently must decide whether water pollution from forest roads and their drainage systems meets the criteria for point source pollution, rendering such sources subject to National Pollution Elimination Discharge System (NPDES) permit requirements under the CWA. Two federal district courts recently reached conflicting decisions regarding this very issue. In Environmental Protection Information Center v. Pacific Lumber Co. (“EPIC”), the court found that ditches and culverts associated with a forest road drainage system fall within the CWA’s point source category.[1] However, in Northwest Environmental Defense Center v. Brown (“NEDC”), a case now on appeal in the Ninth Circuit, another district court reached the opposite conclusion.[2] Differences in the rulings center largely on whether the disputed pollutant—fine sediment generated from forest roads—is discharged into streams naturally or as a result of human activity.[3]

Restoring Public Trust in the Public Lands: An Agenda for the New Administration

Eric Biber, Holly Doremus, Dan Farber, Rick Frank, and Joseph Sax *

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Federally-owned and managed public lands occupy approximately thirty percent of the land area of the United States, and anywhere from forty-five percent to over eighty percent of the land area of many of the states of the West, including California.[1] Those federal lands are significant sources of economically important natural resources for the United States, including timber, rangeland, and minerals. In particular, they are an important source of energy resources for the United States, both fossil fuel (oil, natural gas, and coal) and renewable (wind, solar, geothermal).[2] Many communities in the West continue to rely on the extraction of these resources as important components of their economies.

But these lands are not only important for the exploitation of natural resources. They provide unparalleled recreational opportunities for a wide range of Americans, including fishing, backpacking, skiing, and off-road vehicle use. Indeed, those recreational opportunities have become central to the quality of life of many of the residents of rapidly growing Intermountain West cities such as Denver, Salt Lake City, Reno, Boise, and Missoula, and they are a significant reason why so many people have moved to those cities, as well as many rural areas in the West.[3]

A third quality of our public lands system, is the role that federal public lands play as a reserve system: perhaps to an extent unmatched in the rest of the world the federal public lands system protects open space, amazing scenery, functioning ecosystems, wilderness, and endangered species.[4]

Land Use and Climate Change: Is it Time for a National Land Use Policy?

Catherine J. LaCroix *

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The immediate and short answer to the question in the title is no. It will never be time for an articulated federal land use policy; the tradition of local control of land use is simply too strong. But consider, for a moment, what this local control policy has produced: a legacy of massive, auto-dependent suburban sprawl nationwide. When we consider that more than one-third of greenhouse gas emissions in the United States come from transportation[1] and that land use patterns perpetuate auto-dependency,[2] we may find that it is time to raise the question: might there be value in a federal land use policy, set by Congress, to attempt to turn the tide of sprawl? The idea deserves consideration.

Integrating Land Use and Transportation Policy in California: The Legislature's Response

Dave Jones *

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The Challenge

Accelerated climate change is the preeminent environmental and economic issue of our time. Unless we change course now, it will be the preeminent issue for the next generations also. Recognizing the situation, the Legislature passed Assembly Bill 32, California Global Warming Solutions Act of 2006.[1] This law put California at the forefront of taking action to combat global warming by establishing aggressive goals for reduction of greenhouse gas (GHG) emissions. The goal of AB 32 is to reduce our greenhouse gas emissions to 1990 levels by the year 2020. We cannot just slow down the rate at which GHGs are being emitted—we must go further and in effect turn back the clock.