UCLA Journal of Environmental Law and Policy

This Article examines the role that property customs played in the development of American mining law. It analyzes how small communities of international miners developed systems of property governance and how those customary systems led to the shaping of mineral ownership and mining legislation in America.

Natural resource communities often rely on custom as a form of governance and assertion of property ownership. Resource-based knowledge transfer and relative isolation from established legal systems ensured these customs flourished. But the legislation of these natural resource property customs does not necessarily promote a governance framework that benefits all stakeholders.

This Article begins with a study of mining communities and how a uniques ystem of property ownership flowing from natural resource customs encouraged mineral development and wealth accumulation. These customs were developed by global mining communities over centuries and even millennia. They were brought to the United States in the 1800s where they took root and were eventually enacted as the 1872 General Mining Law, which remains in effect today. In the modern era of space exploration, e-commerce, and internet, the U.S. follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile.

Because of these original mining customs, the U.S. government does not collect any royalty revenue or even know what is produced from hard rock mines on public domain lands. Moreover, the miners’ customs were also adopted to govern other resources, such as water. The prior appropriation doctrine, which uses a priority system of rights and largely governs water in the arid West, originates from the mining communities. The doctrine’s use has exacerbated conflicts as water becomes scarce. This Article advises that understanding the origin of legislated property customs is necessary before their continued use and application to other natural resources.

Various populations of wolves have been listed as threatened or endangered under the U.S. Endangered Species Act since the 1970s. But no listed species has aroused, and continues to arouse, so much controversy as the Northern Gray wolf. “Wolf law” is unique, odd, and often counterproductive—at least if the goal is to ensure the species’ survival and revitalize damaged ecosystems upon which healthy human communities depend. This Article identifies some of the unique characteristics of wolf law, analyzes how and why it has developed in this strange way, and proposes some more sensible ways for healthy human communities to coexist with healthy wolf communities.

We analyze how politics and human needs—rather than the needs of the wolves—have driven the U.S. Fish & Wildlife Service’s approach to wolf management, often to the detriment of the species it is legally obliged to protect. After reviewing the fundaments of the Endangered Species Act, we trace the history of Northern Rocky Mountain gray wolves and highlight the unique, controversial, and often unhelpful (at least if we wish to ensure the species’ survival) ways the USFWS has managed the species. We illustrate the tensions between the clear statutory mandates of the ESA and the political pressures shaping wolf conservation around human wants. We outline some of the themes that set “wolf law” apart from the pack. Finally, we suggest a path forward to manage wolves in a sensible manner that better fulfills the needs of the species—and thus, inevitably, the needs of our own species—as the ESA requires.

This Article will first evaluate the viability of rolling easements as a tool to combat rising sea levels in US coastal communities. Then, it will propose how coastal municipalities can use the rolling easement doctrine established under the Texas Open Beaches Act as a model for balancing dual responsibilities of protecting private property rights and safeguarding public access to coastal waters. Finally, it will consider applications of rolling easements to states positioned along the Atlantic and Pacific coasts, namely in New Jersey and California, where sea levels are expected to rise considerably in upcoming decades and profoundly affect the lives of tens of millions of Americans.

Unnatural disasters, such as floods and wildfires, are making many areas difficult to inhabit. For relocation to unfold in a safer and more equitable way, it must be done in a manner that (1) aligns with community values in each locality, (2) navigates legal barriers to managed retreat, and (3) creates blue-sky funding for adaptation, including managed retreat planning and implementation. This paper argues that developers continuing to build in climate vulnerable areas could and should help cover the risk of their actions. Part I lays out the legal importance of planning for retreat, as well as the need for initial funding for community-level planning and experienced personnel. Few scholars have explored options for municipalities to fund difficult conversations about and initial steps towards managing retreat. Thus, Part II explores how community benefit agreements between communities and developers in climate-vulnerable areas could play a role in bridging the gap between research and implementation. Part II also introduces the idea of a climate resilience development fee, which could provide the needed blue-sky funding to implement managed retreat. Part III analyzes the validity of a climate resilience impact fee in California and Florida, two states in which the consequences of climate change are severe enough for communities to begin to consider managed retreat.