PROPOSALS TO EXPAND KENTUCKY GAMBLING MET WITH LITTLE ENTHUSIASM FROM LEGISLATURE OR INDUSTRY

By: Cara Houlehan, Staff Member

The Kentucky legislature is considering several proposals concerning the addition of slots at racetracks. Janet Patton, Beshear Slots Plan Gets Tepid Reception, Lexington Herald-Leader, Jan. 21, 2010, available at http://www.kentucky.com/

/horse_racing/story/

1104634.html. Governor Steve Beshear's bill would place electronic slot machines at racetracks in accordance with Kentucky's present lottery statutes. Id. Beshear says his proposal would generate $295 million in tax revenue within its first 18 months. Id. Keeneland spokesman Jay Blanton said of the plan, "We appreciate the governor's strong and continued support for the state's signature industry, which is facing significant competitive challenges."Id. However, a recent House democratic caucus revealed little enthusiasm for the bill; it was described as "delusional" by State Rep. Mary Lou Marzian. Id.

House Speaker Greg Stumbo, who asserted that there is "no sentiment" for Beshear's proposal, is pushing his own competing plan. Id. Stumbo claims that his proposal would generate $400-$500 million in revenue within two years, which would then be spent on a school construction project in an effort to boost Kentucky's budget by creating jobs. Id.

While both bills suppose that gambling can be expanded under current lottery laws, a third plan, approved Jan. 20 by a Senate committee, demands an amendment to Kentucky's constitution to allow gambling to be expanded. Id. As a proponent of this approach, Senate President David Williams is skeptical that bills like Beshear's, operating under present lottery statutes, could pass in either the House or the Senate. Id.

Ultimately, though, Williams' proposal has not quelled the concerns of the horse industry. Id. Blanton remarked, "…our concern about a proposed amendment remains the same: our challenges require immediate relief; any proposed amendment that we've seen thus far would, at least, take years to afford any assistance to the industry. That hasn't changed." Id.

Book 2-1 to be published soon!!!

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Congrats to UK Mock Trial Team @ Regional Competition

KJEANRL would like to congratulate the team of Josh Hicks and Paco Villalobos, two talented 2L's who will be representing UK at the national tournament at Dallas in March! They defeated a team from Michigan State to win their region in Columbus this past weekend.

Also, a shout out goes out to Nick Mudd, 3L and Adam Bowling, 2L their teammates for their hard work and dedication!

And, none of this success would be possible without Professor Allison Connelly who has successfully had a team win the regional tournament to move onto nationals 4 years in a row, last year coming in 2nd in the nation! Keep up the great work!

Good luck in March everybody!

Inclement Weather slows Production Schedule

Due to inclement weather our posting schedule will be a little off this week. We hope to have some new pieces available by tomorrow. Thank you for understanding!

Sincerely,
Mark Rouse, Production Editor

University of Kentucky researchers explore alternative to filling surface mining sites in Appalachia

By: Donald Smith, Staff Member

There is a new stream at Guy Cove in Kentucky's Robinson Forest, and it could have a significant impact on the future of environmental law with regard to surface-mining. Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www/.
kentucky.com/latest_news/
story/1118658.html#. When coal companies remove rock for surface mining, the "spoil" (extra rock and dirt) that cannot be placed back in the mined area because it swells, is placed into fills in hollows around the site and compacted for stability. Id. This process often results in covering up parts of streams, to the extent that a 2003 federal study found that an estimated 730 miles of streams in Eastern Kentucky were wiped out by surface-mining activities. Id. This is likely an underestimate, as Greg Pond, formerly a biologist with the Kentucky Division of Water who is currently employed at the Environmental Protection Agency ("EPA"), explains in a 2004 research paper that the estimate in the federal study addressed only a particular class of stream, and it is likely that surface-mining has in fact buried hundreds more miles of headwater areas in Kentucky. Gregory Pond, Effects of Surface Mining and Residential Land Use on headwater Stream Biotic Integrity in the Eastern Kentucky Coalfield Region, http://www.water.ky.gov/NR/rdonlyres/ED76CE4E-F46A-4509-8937-1A5DA40F3838/0/coal_mining1.pdf (last visited Feb. 2, 2010). The coal industry has taken a different approach entirely as to what constitutes a stream. As explained in the Lexington Herald-Leader, "[the coal industry says it would be impossible to mine coal without creating fills. To many associated with the industry, the areas high on the side of a hill where water begins to collect are not streams at all, but merely drainage ditches that only flow with water when it rains or when snow melts." Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www.kentucky.com/latest_news/
story/1118658.html#.

University of Kentucky researchers built a new stream atop the fill at Guy Cove, and planted vegetation and trees. Id. The result is a promising alternative to the current method of filling that, while in its early stages, appears, to have provided for high quality water in a stable stream as a method of reclaiming watersheds. Id. The new research development is particularly interesting against the backdrop of the current legal climate with regard to stream reclamation. The EPA has stalled dozens of permit applications in Appalachia, including Eastern Kentucky, for further review, for concerns including restoration of stream functions after mining. Id.

Yellowstone, Snowmobiles, and Confusion: What Has the NPS Done For You Lately? The Ongoing Battle Over Fund for Animals v. Norton

Comment by Kimberly Ratliff, Former Staff Member; originally appeared in JNREL Vol. 19 No. 2

Abstract by: Matt Cocanougher, Staff Member

A war has been waged in the western United States between the snowmobile industry and conservation groups regarding the use of snowmobiles in national parks, specifically Yellowstone National Park. Interestingly, by handing down opposing decisions, two federal courts have allowed battles to be won by both sides. This has created a great amount of confusion for the conservation groups as well as the snowmobile industry. Additionally, the party charged with putting an end to the confusion, the National Parks Service ("NPS"), played an important role in causing the uncertainty in the first place.

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), was a suit brought by numerous environmental organizations in the Washington D.C. circuit court to challenge the NPS's decision to allow snowmobile use at Yellowstone National Park. The events leading up to this case began in 1997 after some environmental problems arose because of the use of snowmobiles. The NPS responded to a suit by environmental groups which addressed these problems by completing an Environmental Impact Statement in 1998 and issuing a Finding of No Significant Impact, while vowing to continue studying the environmental impacts. Later, in 2001, the NPS decided on the Snowcoach Rule, which would phase out snowmobiles by the 2003-2004 seasons and replace them with mass transit snowcoaches. However, two years after the Snowcoach Rule was decided upon, the NPS completely changed its mind and decided to allow 950 snowmobiles to access Yellowstone daily, mandating that the snowmobiles conform with the best available technology standards.

After the NPS decision reversing its earlier Snowcoach Rule, Fund for Animals and other environmental organizations sued in the D.C. court based on the argument that the 2003 change of the rule was arbitrary and capricious, which violated the Administrative Procedure Act ("APA"). The D.C. court agreed that the 2003 rule was arbitrary and capricious and issued an order reinstating the 2001 decision and allowing the NPS to promulgate new rules to address the matter.

While it seems as though this should be the end of the story, it is not. After the D.C. decision, the International Snowmobile Manufacturers Association and the state of Wyoming brought suit to reopen their pending case challenging the 2001 Snowcoach Rule in Int'l Snowmobile Mfr. Ass'n v. Norton, 304 F. Supp. 2d 1278 (D. Wyo. 2004). Because the Wyoming District Court found that the NPS had not spent an adequate amount of time reviewing the environmental consequences of the Snowcoach Rule, it found that the Rule was invalid. This decision, therefore, ordered the NPS to restore the status quo of no restrictions on snowmobiles.

As a result of both of these cases, the environmental groups involved in the first D.C. case went back to the D.C. court to ask to resolve these inconsistent decisions. The D.C. court ruled that the NPS now has to create a new "rule making process in a manner consistent with, and addressing the concerns" of the Wyoming District Court. Funds for Animals v. Norton, 323 F. Supp. 2d 7, 10 (D.D.C. 2004). Therefore, the NPS has a very difficult task ahead of it of addressing the issues of both the snowmobile industry and environmental groups while keeping in mind the decisions issued in these two cases.

The Impact of Agriculture on Rebuilding Haiti

By: Sunni Harris, Staff Member

After a magnitude 7.0 earthquake hit Haiti, countries around the world sent search and rescue teams to find trapped victims and treat injured people. Elise Labott et al., Aid Begins Flowing to Haiti, Jan. 14, 2010, http://www.cnn.com
/2010/WORLD/americas
/01/13/haiti.aid.response/index.html (last visited Feb. 1, 2010). While it seems that Haiti still has many immediate needs (e.g. food aid), the relief efforts have shifted to focus on long-term sustainability. Lisa Bryant, Relief Efforts Shift to Rebuilding Haiti's Agriculture, Jan. 25, 2010, http://www1.voanews.com/english/news/disaster/Relief-Efforts--Rebuilding-Haitis-Agriculture--82598607.html (last visited Feb. 1, 2010). It seems that agriculture will have a huge impact on whether Haiti can survive and rebuild as a country.

On January 29^th 2010, the Food and Agriculture Organization of the United Nations (FAO) announced an investment plan to restore Haiti's agricultural ministry. Adriana Brasileiro, UN Group Urges $700 Million Investment in Haitian Agriculture, Jan. 29, 2010, http://www.bloomberg.com/apps/news?pid=20601086&sid=at_vFIabEsso (last visited Feb. 1, 2010). The FAO has urged international donors to invest $700 million over the next eighteen months for the purpose of "repairing infrastructure, boosting national food production and creating employment for the thousands of people fleeing the Caribbean country's capital." UN News Centre, UN calls for donors to back $700 million agricultural recovery plan, Jan. 29, 2010, http://www.un.org/apps/news/story.asp?NewsID=33619&Cr=haiti&Cr1 (last visited Feb. 1, 2010). However while this plan spans eighteen months, there is an immediate need for $32 million "to buy seeds, tools and fertilizers so Haitian farmers can start planting in March." Adriana Brasileiro, UN Group Urges $700 Million Investment in Haitian Agriculture, Jan. 29, 2010, http://www.bloomberg.com/apps/news?pid=20601086&sid=at_vFIabEsso (last visited Feb. 1, 2010). Dr. Diuff, director-general of the FAO stated, "to prevent this urban disaster [from] becoming a rural tragedy… it is crucial that we save the upcoming planting season," UN News Centre, Post-quake recovery in Haiti begins with farmers, UN agency says, Jan. 21, 2010, http://www.un.org/apps/news/story.asp?NewsID=33543&Cr=haiti&Cr1 (last visited Feb. 1, 2010).

Other short-term measures in the FAO plan include: repairing a major sugar refinery, protecting watersheds, steps to ensure reforestation, the reconstruction and reinforcement of collapsed riverbanks and damaged irrigation channels, and the rehabilitation of 600 kilometers of roads. UN News Centre, UN calls for donors to back $700 million agricultural recovery plan, Jan. 29, 2010, http://www.un.org/apps/news/story.asp?NewsID=33619&Cr=haiti&Cr1= (last visited Feb. 1, 2010).

Takings Jurisprudence as Three-Tiered Review

Article by: Mark W. Cordes, originally appeared in JNREL Vol. 20, No.1

Abstract by: John Hendricks, Staff Member

Takings jurisprudence has been for all practical purposes a complex and often confusing legal area. However, in analyzing takings jurisprudence, it is possible to draw comparisons to the traditional Supreme Court jurisprudence regarding equal protection. While this comparison is not exact, it does provide an overarching classification system for takings. Like equal protection analysis, takings jurisprudence can be roughly divided into three-tiers of scrutiny based on what type of taking has occurred.

The type of takings subject to the most stringent level of review is takings which involve the permanent physical invasion of property. This category of takings is analogous to the strict scrutiny applied to equal protection claims. The Court has adopted a near per se rule that physical invasions constitute a taking. Just as the Court has protected against suspect classifications, so has it been protective of physical invasions of property by the government, such government action is almost always unconstitutional.

The second level of review in takings jurisprudence involves situations regarding development extractions. Under the standards announced in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), a court should look for a "rough proportionality" between the extraction and the use of the land. This approach can be compared to intermediate scrutiny, in that it is not invalid per se and the court will look at the reasons for the government action.

Finally, the third type of takings is takings based on a land use regulation's economic impact. These types of takings can best be compared to the deferential review or minimum rationality review applied in equal protection cases. While the comparison between takings based on a land use regulation's economic impact and deferential review may seem to conflict with the Court's analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1977), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in an abstract sense, both types of review are similar. While takings based on a land use regulation's economic impact are subject to a factual inquiry, the government is still granted a level of deference that is similar to deferential review in equal protection cases. Ultimately, the comparisons between takings jurisprudence and equal protections cases provide an analytical framework for understanding the sometimes murky world of takings jurisprudence.

Some Hopeful Signs for Kentucky’s Water

By: Tara Hester, Staff Member

Governor Steve Beshear and his Energy and Environment Cabinet as well as several other groups are working closely with the coal industry to protect Appalachian creeks and streams from the impact of surface mining. Stephanie McSpirit, Some Hopeful Signs for Kentucky's Water, Lexington Herald-Leader, Jan. 25, 2010, available at http://www.Kentucky.com/589/story/1109938.html. The recent reclamation advisory gives clear guidelines so that more excess spoil is retained on the mine site and not bulldozed into valleys and streams. Id. These guidelines are not only good for streams and creeks and the biological communities that they host but are also beneficial to communities downstream from surface mine sites. Id. Stricter guidelines with more attention on protecting stream and creek channels will help reduce the impacts associated with flooding and flash-flooding events. Id. Currently, these guidelines are not mandatory, but only "best practice" guidelines that coal mines are encouraged to follow. There is hope, however, at both the federal and state level that the guidelines will be followed. Id. In Kentucky, stricter federal standards between the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in granting 404 dredge and fill permits under the Clean Water Act will undoubtedly push more coal companies into adhering to these new reclamation guidelines. Id.

There are several things that can be done to further protect the Appalachian waters. One suggestion is more collaboration and sharing of information and data between the Division of Water and the Department of Natural Resources in evaluating the cumulative impacts of mine activities on waterways. Id. The Department of Natural Resources needs access to the data collected by the Division of Water to better review the impacts of mining activities on surface water. Id. However, it appears efforts to protect Kentucky's waters are moving in the right direction by encouraging discussion among experts and stakeholder groups in developing strategies and recommendations to better protect Kentucky's natural resources and our communities. Id.