Wednesday, March 28, 2012
Shelley Ross Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model, forthcoming in Marquette Law Review Vol. 95 (2011). The abstract:
This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.