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California's Camp Fire, November 2018 Peter Reich recently posted "What Happened to Hispanic Natural Resources Law in California?" . The abstract: Before the US annexation of California in 1848, the region’s Spanish and Mexican governments supervised a geographically-adapted legal system emphasizing communal water rights and public allocation of minerals, land, and coastal areas. While many post-takeover judges considered Hispanic legal principles, the overall trend was to reject these in favor of common law. The prior anti-developmental tradition was in most cases distorted, overridden, or procedurally blocked, and the jurisprudence replacing it facilitated resource degradation that has been only partially reversed by California’s modern environmental policy. As one example, the stark contrast between fire zone rules in Mexico’s Baja California and in US Southern California, and the resulting far more destructive conflagrations in the latter, demonstrate the advantages o...

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946" : This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the...

Today's "This Day in Water History" has this: Judson Harmon, c. 1912 June 11, 1895: First day of tenure of Judson Harmon as U.S. Attorney General. “Harmon issued the most explicit statement of what became known as the American doctrine of absolute sovereignty, that “the rules, principles and precedents of international law impose no liability or obligation upon the United States,” in a case involving a claim by Mexico for damages from diverting the waters of the Rio Grande.” Or, as one source put it: “US Attorney General Judson Harmon tells Mexico that the US will ‘do whatever it pleases’ with water from the Rio Grande.” Commentary: Even for those days, this was a pretty amazing statement.

Ecology Law Quarterly  recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act" . The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998  The Dawn of Conservation Diplomacy ). Hamilton explains (notes omitted) that: early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared u...

(Continuing the series on water rights :) The empirical work of Ostrom ( 1990 ; Ostrom and Gardner, 1993 ) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions ( Ostrom et al., 2010 ): Elinor Ostrom Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other thre...