Government to Fund Racial Bias Settlement with Black Farmers

By: Sunni Harris, Staff Member

In Pigford v. Glickman, 127 F. Supp.2d 35 (D.D.C. 2001), Black farmers claimed that the USDA discriminated against them "on the basis of race, and failed to investigate or properly respond to complaints from 1983-1997." Tadlock Cowan & Jody Feder, The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers, (2009), http://www.nationalaglawcenter.
org/assets/crs/RS20430.pdf. While this case was settled in 1999, a new settlement was announced on Feb. 18, 2010 that addresses claims from black farmers who were excluded from participation in the earlier settlement. Paul Courson, Black farmers: Government to fund racial bias settlement, Cnn, Feb. 18, 2010, http://edition.cnn.com/2010/US/02/18/black.farmers.lawsuit/index.html?iref=allsearch. In the end the parties were able to reach a settlement. Id.

Although a settlement has been reached, the 2010 farm bill still needs to be approved by Congress which would place at least $1 billion in the hands of individuals who have received judgments in compensation claims. Id. Secretary of Agriculture Tom Vilsack doesn't think that "anybody in Congress doubts there's a responsibility to settle." Id. The secretary believes that the reason why funding wasn't provided to black farmers in the past was because there was concern by lawmakers that no agreement had been reached. Id. Since an agreement was reached on Feb.18, 2010, funding is now much more likely.

Once the farm bill is funded, there are two ways in which qualified black farmers can receive a payout: (1) On track A, qualified farmers would receive $50,000 "with minimal proof linking discrimination to the denial of federal farm support." Id., and (2) On track B, "A more rigorous system of proof could establish actual damages and yield a potential payout up to $250,000, depending on how many other claimants also prove their cases to draw from the funding provided by Congress." Id.

The implications of the black farmers settlement may be far reaching. Around the same time that black farmers filed their initial suit against the government, several other minority groups, including but not limited to females, Hispanics, and Native Americans, filed similar actions claiming bias in the way the USDA disbursed loan money. In the coming months we may see the government attempt to settle claims with these minority groups as well. However, if the government chooses not to settle with these similarly-situated minority groups, we may see a backlash from these communities.

Arizona v. California III: Res Judicata, Collateral Estoppel, and Indian Water Rights

Comment By: John J. Goodman; originally appeared in JNREL Vol. 19, No. 2

By: Katie Shoultz, Staff Member

In Arizona v. California, 530 U.S. 392 (2000), the fundamental issue was whether the Quechan Tribe's claims for compensation and water rights for 25,000 acres of reservation boundary land were precluded by reasons of Arizona v. California, 373 U.S. 546 (1963) (hereinafter Arizona I) or by a 1983 consent judgment issued by the U.S. Claims Court (hereinafter Arizona II). In Arizona I, the Court ruled with respect to the priorities of water rights but did not decide the rights of the parties in areas where the boundaries of the reservation remained in dispute. In Arizona II, the federal government and the Quechan Tribe reached a settlement without the boundary land water rights issue being addressed. In the latest case, Arizona III, the Supreme Court ruled that the states' preclusion argument was barred as it was not brought forth in a timely fashion. The Court also ruled that the Quechans' acceptance of the earlier settlement did not inherently contain an issue preclusion.

Arizona III details the longstanding legal saga between the Quechan Tribe and several western states regarding the dispute over ownership of the land with the associated water rights and examines the implications of the Court's decision in regards to Native American natural resources law. Even though the question of ownership remains unanswered since 1893 despite three court cases, three Department of Interior declarations, and a cash settlement of $15 million by the federal government, the implications of this decision are likely far-reaching.

First, the concept of res judicata is applied as a claim preclusion in this case, but it also could be viewed as a means by which judicial administration remains manageable. Second, even though the monetary settlement eliminated the Quechan Tribe's claim against the federal government, it did not eliminate the issue of water rights. This finding may prompt other tribes to review their settlements for unresolved issues. Third, the Court's decision to ignore a portion of the Indian Claims Commission's process may encourage other tribes to view such settlements as potentially non-binding and seek alternative remedies. Finally, the Court's ruling of res judicata may allow for an unequal approach to the different tribes.

Although the case involved important civil procedure concepts, the economic impact is certainly of great importance. Because the case was remanded back to the Special Master to determine the water rights, the Quechan Tribe may successfully establish rights to 25.6 billion gallons of water from the Colorado River on an annual basis. This water can then be sold in a bidding process. As such, enormous economic ramifications can result from the final judgment.

Equine Abuse and Neglect Educational Program in Kentucky

By: Katie Shoultz, Staff Member

In Kentucky, an educational program designed to help law enforcement officials detect equine abuse and neglect is being conducted by Speak Up For Horses. Speak Up for Horses is a non-profit organization that came into existence in 2006. Its primary mission is "to educate the public on the plight caused by an unknowing public, by inadequate
horse welfare laws, and by the woeful enforcement of existing laws at the federal, state, and local levels." Speak Up For Horses, http://speakupforhorses.org/about.lasso (last visited Mar. 3, 2010). The program, although primarily geared towards law enforcement and elected officials, is open to the public in an effort to encourage awareness and action. As part of the program, the Henneke Horse Body Condition Scoring System is taught as a means by which an official can decide whether intervention is necessary. This system is used throughout the country and provides one of the more uniform methods of determining horse abuse and neglect. The scoring system rates a horse from one to nine in terms of body fat and is viewed by many as an objective method. Equine Protection Network, Henneke Body Condition Scoring Chart, http://www.equineprotectionnetwork.com/cruelty/henneke.htm (last visited Mar. 3, 2010). It is also accepted by courts when such cases are litigated. Id.

Another aspect of the program is the discussion of animal cruelty law in Kentucky. Jared Nelson, Horse Abuse Case Prompts Training, The Times Leader Online, June 14, 2009, http://speakupforhorses.org/timesLeader.pdf. Kentucky law provides, in part, that a person is guilty of animal cruelty to animals in the second degree when though intentional or wanton behavior, a four-legged animal is subject to beating, mutilation, torture, torment or a failure to provide adequate food, drink, space, or health care. Ky. Rev. Stat. Ann. § 525.130(1)(a) (2009).

Because the law does not criminalize negligent behavior, this program is particularly helpful in instances where the abuse or neglect stems from lack of knowledge as to how to properly care for horses. Of course, in instances where the behavior is intentional or wanton, the program also equips those most often called to the scene with useful methods of ascertaining the situation, which can eliminate confusion and prompt greater enforcement of the anti-cruelty provisions.

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia, and Kentucky

Article by: Sharon O. Flanery and Leslie R. Miller-Stover; originally appearing in JNREL Vol. 19, No. 2

Abstract by: Kyle Hermanson, Staff Member

Virginia, West Virginia, and Kentucky each have coal seams that lay within the Appalachian Basin and each of the states have adopted statutory schemes designed to maximize the utilization of those natural resources. Their statutes are intended to both ensure the safe production of coalbed methane (CBM) and coal within the same coal seam and balance the rights of the CBM and coal interest holders when they conflict. In 1990, Virginia became the first of the three states to specifically regulate the production of CBM, doing so within its existing scheme of oil and gas regulations. Virginia's statute states that its provisions should be construed to encourage the exploration for and production of the Commonwealth's oil and gas reserves. The statute goes on to provide that the production of coal should be maximized so long as it does not substantially affect the rights of a gas or oil owner. West Virginia and Kentucky's statutes differ in that they emphasize the recovery of coal and that the recovery of CBM should be promoted, provided it does adversely affect the safety or mining of coal seams.

CBM is natural gas that lies trapped in coal seams. CBM is unique in that it is both generated and stored within coalbeds, with the coal acting like a sponge and storing six times the volume of natural gas found in conventional reservoirs. CBM is often produced as a safety measure in advance of underground mining. However, CBM can also be produced for commercial reasons from unmined coalbeds as well as from the fractured rock wastes generated by longwall mining. In order to produce CBM, "stimulation" of the coal seam is usually required. Fluids are injected into the seam at high pressures in order to stimulate the coal and release the gas. There is some concern that this process may affect both the safety and productivity of coal mining.

Despite Virginia's stated emphasis on gas production over coal, the Commonwealth has the toughest standard for the production of CBM, requiring coal owner consent before a permit for stimulation can be granted and providing no venue for appeal should consent not be obtained. West Virginia and Kentucky, like Virginia, also require a permit for stimulation. However, where consent cannot be obtained, both states allow the stimulation applicant to request a hearing before a state agency review board. At the hearing, the applicant must prove that the stimulation will not render the coal seam unmineable or unsafe for mining in order to obtain a permit. In West Virginia, even if a CBM producer obtains a stimulation permit, absent coal owner consent, the producer is subject to tort liability for any damage caused to coal or mining equipment by the stimulation.

In addition to stimulation, the location and spacing of CBM wells provide ample grounds for conflict between CBM producers and coal operators due to potential safety hazards and significantly increased costs to coal operators related to well placement. Through the enactment of statutes, Virginia, West Virginia, and Kentucky have addressed these and several other issues involved in balancing the interests of the producers of two valuable resources, however each state's statutes differ in their specifics and goals.

Recession May Provide Opportunity for Senator to Stifle EPA’s Regulatory Authority under the Clean Air Act

By: Addison Schreck, Staff Member

In December of 2009, the Environmental Protection Agency announced that it had conclusively determined that greenhouse gases, previously notorious primarily for their effects on the environment, also threaten public health. msnbc.com, EPA: Greenhouse Gases are Dangerous to Humans, Dec. 7, 2009, http://www.msnbc.msn.com/
id/34311724/ns/us_news-environment/. In making this determination the EPA cleared the way for regulation of greenhouse gases under the Clean Air Act. This announcement peaked the interests of environmentalists and the fears of big businesses across the country.

Even more recently, on February 2^nd, Senator Lisa Murkowski (Alaska (R)) introduced a resolution intended to strip the EPA of the aforementioned ability to regulate greenhouse gases via the Clean Air Act. John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html. In addition to curtailing the EPA's ability to regulate six of the primary gases blamed for global warming, the bill seeks to restrain the EPA from finding that U.S. fuel production of biofuels, such as ethanol, is responsible for forest clearing and cropland expansion. Charles Abbott, House Bill Would Prevent EPA Regulating Carbon, Scientific American, Feb. 3, 2010, http://www.scientificamerican.com/article.cfm?id=house-bill-would-prevent.

The concerns voiced by Murkowski, which include predictions of increased agriculture costs come as no surprise after the alarms raised by the national business community in past years. Deborah Zabarenko, CO2 Regulation Could Hit 1 Million U.S. Firms, Reuters.com, Sept. 16, 2008, http://www.reuters.com/article/idUSN1529571120080916. The senator's resolution would require a majority vote in the Senate, and if the resolution does advance through the House it would face the near certainty of veto by President Obama, "because it would rob him of a critical regulatory tool." John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html.

The mood in the United States is one of hope, hope that we have seen the worst of the recession. Whatever legislation or regulation comes into existence, the tenuous economic situation the in which the country and world are positioned must be taken into account. So many of the jobs lost in the current recession are said not to be coming back, and we are seeing entire professions virtually disappear, whether to overseas markets or the relentless march of time. Catherine Rampell, The Growing Underclass: Jobs Gone Forever, N.Y. Times, Jan. 28, 2010, available at http://economix.blogs.nytimes.com/2010/01/28/the-growing-underclass-jobs-gone-forever/. However, the promotion of growth does not mean that progress on the climate change front must come to a halt. At least one side of the debate sees hope in the possibility of so called "green jobs," and if the old industries are no longer interested in doing business within our borders, then what's so wrong with reinventing ourselves? Carol E. Lee, Obama Focuses on Green Jobs, Politico, March 23, 2009, http://www.politico.com/news/stories/0309/20360.html. Necessity has always been the mother of invention, a quick look at today's headlines, and it's obvious, it's time to get inventive.

Can You See Me Now? The Struggle Between Cellular Towers and NIMBY

Comment By: Camille Rorer; originally appearing in JNREL Vol. 19, No.2

Abstract By: Bryan Henley, Staff Member

Cellular telephones, like most modern conveniences, are generally regarded as being beneficial to society. Much like sewage treatment and the production of sausages, most people want them to exist without being exposed to the unseemly processes and facilities that provide them. However, the inner workings that enable cellular telephones cannot be sequestered or buried beneath the pavement because those systems take the form of radio transmission towers. Instead, cell towers must typically be in an open area (and thus visible) and situated in an overlapping grid that covers all places where a person would want to make a telephone call. That's everywhere!

This puts the populace surrounding a potential site in a position of wanting a tower to exist, just not wanting it there. This is the NIMBY, or "Not-In-My-Back-Yard" obstacle. NIMBYs are groups of citizens and organizations that, at least in the context of cellular telephones, oppose the currently proposed site, but would support the tower's existence in another location. While immediately reasonable in any instant debate, this problem only becomes apparent when it is considered that every site would have its own separate NIMBY group in opposition. Left unrestrained, these isolated NIMBYs could comprehensively halt cellular service.

In response to this problem, the federal government amended the Federal Telecommunications Act in 1996. This act declares the ground rules for resolving these conflicting interests. These rules are clearly designed to further the placement of towers, as some reasons for denying a cell tower site are proscribed completely and all others must meet a standard of substantial evidence. This evidentiary standard is the fighting issue in these decisions which are very valuable to both the cellular service providers and the landowners who own the proposed site. In "Can You See Me Now? The Struggle Between Cellular Towers and NIMBY," Camille Rorer explores many such disputes and identifies five of the most common arguments put forth by NIMBYs. Each argument in analyzed from its legal and, when necessary, scientific positions. As our reliance on such communication enhancing devices increases as a society, so will these types of dispute. Through her analysis, Ms. Rorer offers a well considered understanding of what is likely to be a common dilemma.

Obama v. Kentucky Coal

By: Zach Greer, Staff Member

Earlier this month, President Obama and his administration released their proposed fiscal budget for 2011, which will "cut roughly $2.3 billion in coal subsidies over the next decade." Halimah Abdullah, Ky. lawmakers blast federal budget's proposed coal subsidy cuts, Lexington Herald-Leader, Feb. 1, 2010, available at http://bluegrasspolitics
bloginky.com/2010/02/01/ky-lawmakers-blast-federal-budgets-proposed-coal-subsidy-cuts/. These cuts, as well as "the repeal of roughly $36 billion in subsidies to the oil and gas industry," stem from last year's G-20 summit, where the Obama administration agreed to "phase out fossil fuel subsidies to help reduce global greenhouse gas emissions by 10 percent." Id. While environmental groups support the President's budget, claiming that it "'promotes America's energy independence by reducing our reliance on foreign oil, starting the transition away from dirty fossil fuels, and investing in conservation and clean power like wind and solar,'" others worry that removing these subsidies could be detrimental to those Kentucky individuals, families, and counties that depend "on coal for their livelihood." Id.

The Obama Administration's position, evidenced by a White House Office of Management and Budget analysis released earlier this month, is that "coal subsidies are costly to the American taxpayer and do little to incentivize production or reduce energy prices." Id.

However, the Commonwealth of Kentucky "has been one of the top three coal producers in the United States for the last 50 years." In 2006, the Kentucky industry "directly employ[ed] 17,669 persons" and had "average electricity costs [of] 5.43 cents/kilowatt-hour, the 4th lowest in the United States." Kentucky Office of Energy Policy, Expanded Online Kentucky Coal Facts, http://www.coaleducation.org/Ky_Coal_Facts/default.htm (last visited Feb. 20, 2010).

The White House states, "removing these [coal] subsidies would reduce greenhouse gas emissions and generate $2.3 billion of additional revenue over the next 10 years." Abdulla, supra.
But, in December 2009, Kentucky's jobless rate rose to 10.7 percent. Justine Detzel, Kentucky's jobless rate increases to 10.7 percent in December, Workforce Kentucky, Jan. 21, 2010, available at
http://www.workforcekentucky.ky.gov/article.asp?PAGEID=4&SUBID=&articleID=844.

With such a high unemployment rate, are the Obama administration's proposed budget cuts beneficial or detrimental to the Commonwealth of Kentucky? Any thoughts?

Animal Welfare Bill Reaches the Kentucky State Senate Floor

By: Katie Huddleston, Staff Member

On February 4, 2010, the Agriculture Committee in the Kentucky State Senate passed a bill creating a commission "to set rules for how animals are treated on farms." American Agricultural Law Association, Farm Animal Welfare Bill Passes Kentucky Senate Committee, THE UNITED STATES AGRICULTURAL & FOOD LAW AND POLICY BLOG, February 4, 2010, http://www.agandfoodlaw.com/search?updated-max=2010-02-08T08%3A49%3A00-08%3A00&max-results=7. The measure, sponsored by Committee Chairman David Givens, a Republican from Greensburg, Kentucky, is not the first of its kind, but rather follows an example set by Ohio last fall. Gregory A. Hall, Senate Committee Passes Farm Animal Welfare Bill, THE COURIER JOURNAL, February 4, 2010, available at

http://www.courier-journal.com/article/20100204/BUSINESS/2040336/Senate-committee-passes-farm-animal-welfare-bill. Ohio State Congress passed a bill creating a "Livestock Care Standards Board" that would set similar rules for the treatment of livestock on farms. The measure was later made law by a statewide ballot initiative. American Agricultural Law Association, supra.

The Kentucky bill creates a "standards board," like that in Ohio, which will be made up of fourteen members, will be chaired by Agriculture Commissioner Richie Farmer, and will include the State Veterinarian Robert Stout, who will be a non-voting member. Hall, supra. The bill, although it prevents local governments from passing "standards that are stricter than those set by the state commission," expressly states that "it does not preclude the authority of the Kentucky Horse Racing Commission and the Kentucky Board of Veterinary Examiners." Id. According to Senator Givens, the goal of the commission is to ensure that "the conversation" about animal rights on farms "be driven by scientific standards and practical animal care standards and […] not be driven by emotion." Id.

Put more bluntly, proponents of the measure seek to "pre-empt animal-rights groups from changing state livestock laws via ballot initiatives." American Agricultural Law Association, supra. Specifically, Commissioner Farmer cites his desire to "block efforts seen in other states by groups like People for the Ethical Treatment of Animals and the Humane Society of the United States to restrict farming the name of animal welfare." Hall, supra. The Commissioner went on to further demonstrate his wariness of claims of animal abuse on farms, saying that it "simply doesn't make sense that farmers are going to mistreat their animals because that's how they make a living." Id. Taking a more tempered approach, State Veterinarian Stout acknowledges that "some animal abuse complaints are valid," but also cautions that "many are not and the people reporting them are often not […] familiar with agricultural practices." Id.

Having passed the Senate Agriculture Committee, the fate of the Commission is now on the Senate Floor where the measure will either be defeated or passed and sent to the House for its consideration.

Must NEPA Always Be Followed to the Letter When Obtaining an Environmental Assessment to Acquire a Conservation Easement?...

...After All, Aren’t We Maintaining the Environmental Status Quo?”

Note By: Ben W. Alderton; Originally published in JNREL Vol. 19, No. 2

Abstract By: Brandon Wells, Staff Member

Land that the Department of Defense (“DOD”) has been entrusted with for the training of military personnel has increasingly become a refuge for many threatened and endangered animals. Questions about what the DOD should do in this scenario have led to the solution of allowing the DOD to purchase lands surrounding training grounds and designating them as conservation lands. But, another question has arisen from these purchases of conservation lands. When acquiring conservation lands, should the DOD (or any other military department) be required to comply with the National Environmental Policy Act (“NEPA”) and prepare an Environmental Assessment (“EA”)?

NEPA is only triggered by a “major federal action”, and once triggered, requires the federal agency to complete an EA. An EA can result in one of two outcomes, either a finding of no significant impact (“FONSI”) or a duty to prepare an Environmental Impact Statement (“EIS”). Since acquiring conservation land would seem to lead to a FONSI, it seems wasteful to require a government agency to expend time and resources in preparing an EA. However, recent case law has not lead to a definitive answer.

“NEPA is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment to be an environmentally conscious one.” Sabine River Auth. V. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992). The federal agencies have the responsibility for issuing the EA and the FONSI or EIS. Before the DOD or other federal department can issue a FONSI, they have to also issue an EA. An EA is not to be taken lightly, and can result in high expenses in both cost and time to federal departments.
The court in Sabine River came close to resolving this issue. The holding in Sabine River seemed to indicate that acquiring a conversation easement was merely maintaining the status quo, and therefore NEPA was not triggered. However, there was no specific language in the case stating NEPA was not triggered. Also, in Sabine River the federal agency had already prepared an EA, failing to answer the question of whether the EA was actually required.

There has been a circuit split on the issue of whether NEPA is triggered when the Department of the Interior is designating a critical habitat under the Endangered Species Act (“ESA”). Pacific Legal dealt with the specific issue of whether the federal agency must prepare an EIS when listing endangered species. The court in Pacific Legal noted that “the legislative history [suggests that NEPA] was not intended to be applied to agencies whose function it was to protect the environment.” Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The Ninth Circuit case of Douglas County v. Babbitt addressed the issue of whether a federal agency triggered NEPA when it was acting within the statutory scope of the ESA because an EA had been prepared prior. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The court in Douglas County determined that NEPA did not apply to the designation of a critical habitat. However, in Catron County, the Tenth Circuit concluded that NEPA was triggered when designating a critical habitat under the ESA. Catron County Bd. of Comm’rs. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996).

Even though the cases resulted in different outcomes, one possible explanation may be that in Douglas County the designation of habitats only affected federal lands. In Catron County some of the designated land potentially affected land owned by the county. Questions of standing such as these lead to the question of whether a challenge can be made to not preparing an EA in response to acquiring conservation easements.

A plaintiff who asserts purely economic injuries does not have standing to challenge any agency action under NEPA. Douglas County, 48 F.3d at 1499. Therefore, the plaintiff challenging the agency action must have some concrete and cognizable interest in the suit. Courts seem to be lenient in allowing plaintiffs to proceed, but one major group, developers, will undoubtedly be excluded by this standing requirement.

Thus, after much discussion, the question still remains as to whether the DOD must prepare an EA when acquiring these conservation easements. Sabine River seems to indicate that NEPA may not be triggered, but in that case an EA had already been filed prior to acceptance of the easement. The circuit split between Douglas County and Catron County doesn’t do much except to confuse the issue. Until the issue is taken up by Congress or the Supreme Court, the mystery will remain. In the meantime, prudence will likely require the DOD to prepare an EA to protect itself from litigation when acquiring conservation lands.