Natural Resources

Fall 2011 Natural Resources Law Class at UB

In The State We Trust November 3, 2011

Filed under: Uncategorized — arthurjamesiii @ 12:40 am

Where are the millions of gallons of water going to come from to drill just one horizontal hydraulic fracturing (“fracking”) well in New York? Often times gas companies extract this water from local rivers yet the Court in Illinois Central Railroad Company concluded that the state holds “navigable” waters in trust for the benefit of the public and cannot relinquish their control “except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.”

While there are large rivers in upstate New York where water may be extracted without substantial impairment of the public interest, there remains a majority of navigable waterways that would be impaired if any significant amount of water was taken. While we as upstate New Yorkers are rich in freshwater, this resource may soon be attacked upon the issuing of permits slated to begin next year. Might the Public Trust doctrine come into play? For now it seems, we can only wait and see…


Takings under the Endangered Species Act October 28, 2011

Filed under: Uncategorized — arthurjamesiii @ 5:25 pm

This week we are beginning our inquiry into section 9 of the Endangered Species Act (“ESA”) prohibiting the “taking” of an endangered species. As we will see, taking is defined very broadly and may even include harming an endangered species habitat. Section 9 applies not only to endangered species but also to threatened species.  This prohibition against taking of endangered and threatened species however is not without exception. The most common exception is in the case of obtaining an incidental take permit.  In such case a Habitat Conservation Plan (“HCP”) must be developed and is legally binding on both the government and the permit holder.

The law of takings under the ESA is currently the focus of legal action in our own backyard. Please see the link below of a news article describing how two bald eagles have nested on private property along Irondequoit Bay in Rochester. This is an active nest and the Eagles have produced a number of eaglets over the past few years. Accordingly, both state and federal officials have all but formally rejected any desire by the property owners to develop the land. As the article mentions, the property owners paid $1.5 million for the 16 acre parcel prior to the Eagles beginning to nest in the area. This is prime waterfront property adjacent to the property owners existing businesses.  Development would require harvesting some timber and the building of roads. What do you think . . . taking or not? would an incidental take permit and corresponding HCP satisfy the goals of the FWS or the developer when he bought the property prior to the nesting?