Bob Adler has returned from sabbatical but is entering a two-year period of phased retirement. This semester he is teaching Civil Procedure (after a hiatus of many years) and a seminar on International Resource Conflicts. This year he published two law review articles, Translational Ecology and Environmental Law and Atomizing the Clean Water Act: Ignoring the Whole Statute and Asking the Wrong Questions, both in the journal Environmental Law. He also contributed a chapter to Jason Robison’s co-edited book honoring the sesquicentennial of John Wesley Powell’s historic explorations of the Colorado River. (Bob’s chapter was Communitarianism in Western Water Law and Policy: Was Powell’s Vision Lost?) He is currently working on three additional contributed book chapters, one for another volume edited by Jason Robison on the centennial of the Colorado River Compact, one for an international book on climate change adaptation, and one for the most recent in John Dernbach’s work on sustainability. Bob is also organizing next spring’s Stegner Symposium on Plastics in the Environment and will be giving a talk at the symposium on plastics regulation (which may result in an additional law review article on the subject).
The American College of Environmental Lawyers elected James I Farr Presidential Endowed Professor of Law Robin K. Craig to its membership in July 2019, recognizing her achievements in environmental law and policy over at least 15 years, and then elected her to its Board of Regents in October 2020. Craig continues to serve as a Trustee and as Co-Chair of the Natural Resources Law Teachers Committee for the Rocky Mountain Mineral Law Foundation and is currently co-chairing the Planning Committee for the Foundation’s June 2021 Natural Resources Law Institute, to be held (everyone hopes) in Monterey, California. She is also on the Planning Committees for the first two RMMLF Water Law Institutes and will moderate the dam removal panel that she organized during the November 2020 online Institute. Other planned talks for 2020-2021 include the Vermont Law School Colloquium on Environmental Scholarship in September 2020 (online), where she presented two papers; the ABA Section on Environment, Energy, and Resources Annual Fall Conference in October 2020 (online); the Rocky Mountain Junior Scholar Conference plenary panel in November 2020; the American Water Resources Conference (online) in November 2020; the Water Law Professors Works in Progress Workshop (online) in December 2020, which Craig organized; the AALS Annual Meeting (online) in January 2021; and the UC Davis School of Law in February 2021 (online). Craig’s recent publications include: “Adaptive Management for Ecosystem Services at the Wildland-Urban Interface,” 14:1 International Journal of the Commons 611-626 (Oct. 2020) (with J.B. Ruhl); “George Perkins Marsh: Anticipating the Anthropocene,” in Jan Laitos & John Nagle, eds, Pioneers of Environmental Law 3-22 (Twelve Tables Press: September 2020); Selected Environmental Law Statutes, 2020-2021 Educational Edition (West Academic: July 2020); “Juliana v. United States Fails at the Ninth Circuit: Climate Change as a Constitutional Issue,” Insights, 35:1 Natural Resources & Environment 53-55 (Summer 2020); “Untapped capacity for resilience in environmental law, policy and organizations,” __ Proceedings of the National Academy of Sciences (PNAS) (accepted Aug. 6, 2019; forthcoming 2019) (with Ahjond Garmestani, J.B. Ruhl, Brian C. Chaffin, Helena F.M.W van Rijswick, David G. Angeler, Carl Folke, Lance Gunderson, Dirac Twidwell, & Craig R. Allen); “Hurricanes and the National Flood Insurance Program: Is Congress Paying Attention?,” 34:3 Probate & Property 24-30 (May/June 2020); “Water Law and Climate Change in the United States: A Review of the Legal Scholarship,” 7:3 WIREs Water e1423 (May/June 2020); https://doi.org/10.1002/wat2.1423; “Warming Oceans, Coastal Diseases, and Climate Change Public Health Adaptation,” 10:1 Sea Grant Law & Policy Journal 3-28 (April 2020); “The New United Nations High Seas Treaty: A Primer,” Insights, 34:4 Natural Resources & Environment 48-50 (Spring 2020); “Reply to MacLean: The flexibility of existing laws is an essential element of environmental governance,” 117(13) PNAS (April 7, 2020) (with J.B. Ruhl & Ahjond Garmestani); “Untapped capacity for resilience in environmental law, policy and organizations,” 116:40 Proceedings of the National Academy of Sciences (PNAS) 19899-19904 (Oct. 1, 2019) (with Ahjond Garmestani, J.B. Ruhl, Brian C. Chaffin, Helena F.M.W van Rijswick, David G. Angeler, Carl Folke, Lance Gunderson, Dirac Twidwell, & Craig R. Allen); “Fostering Adaptive Marine Aquaculture Through Procedural Innovation in Marine Spatial Planning,” 110 Marine Policy 103555 (Dec. 2019); “The Role of Social-Ecological Resilience in Coastal Zone Management: A Comparative Law Approach to Three Coastal Nations,” 7 Frontiers in Ecology & Evolution art. 410 [online] (25 October 2019) (with Ahjond Garmestani, Herman Kasper Gilissen, Jan McDonald,, Niko Soininen, Willemijn J. van Doorn-Hoekveld, & Helena F.M.W. van Rijswick); “Zero Sum Games in Pollution Control: Ecological Thresholds, Planetary Boundaries, and Policy Choices,” Chapter 2 in Sarah Krakoff, Melissa Powers, & Jonathan Rosenbloom, eds., Beyond Zero-Sum Environmentalism 11-32 (May 2019), which was selected to be reprinted in The Environmental Forum’s Summer Reading Issue as the best essay published by the ELI Press in the last year, appearing a “Pies and Thresholds,” 36:4 Environmental Law Forum 38-49 (July-Aug. 2019); “Constitutional Environmental Law, or, the Constitutional Implications of Insisting that the Environment Is Everybody’s Business,” 49 Environmental Law 703-736 (2019), reprinted as 57:1 Rocky Mountain Mineral Law Foundation Journal 163-195 (July 2020); “Trickster Law: Promoting Resilience and Adaptive Governance by Allowing Other Perspectives on Natural Resource Management,” 9:2 Arizona Journal of Environmental Law & Policy 140-157 (Spring 2019); “Coastal Adaptation, Government Subsidized Insurance, and Perverse Incentives to Stay,” 152(2) Climatic Change 215-226 (Jan. 2019); and “Environmental Law. Disrupted,” 49 Environmental Law Reporter News & Analysis 10038-10062 (Jan. 2019) (with Inara Scott, David Takacs, Rebecca Bratspries, Vanessa Casado Pérez, Keith H. Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Jonathon D. Rosenbloom, Shannon Roesler, J.B. Ruhl, & Erin Ryan). Craig and Utah Environmental Humanities Director Jeffrey McCarthy have secured a contract with the University of Utah Press for Re-Envisioning the Anthropocene Ocean, an interdisciplinary collection of essays on the importance of the ocean in the 21st century. The Fifth Edition of Environmental Law in Context and the Second Edition of the co-authored Toxic and Environmental Torts are both due to West Publishing in June 2021. Craig’s other chapters and articles that will appear in print shortly include: “Learning to Live with the Trickster in New Zealand: U.S. and New Zealand Fisheries Law in the Anthropocene,” 15 Resource Management Theory & Practice (New Zealand) (forthcoming 2021); “Panarchy and Law in the Anthropocene,” Chapter 12 in Lance Gunderson, Craig Allen, and Dirac Tidwell, eds., Panarchy II (Island Press: forthcoming 2021) (with Barbara Cosens, Ahjond Garmestani, and J.B. Ruhl); “New Realities Require New Priorities: Rethinking Sustainable Development Goals in the Anthropocene,” in Jessica Owley & Keith Hirokawa, Environmental Law Beyond 2020 (ELI Press forthcoming 2020) (with J.B. Ruhl); and “Resilience Theory and Wicked Problems,” 73: 6 Vanderbilt Law Review (forthcoming 2020).
Professor Leslie Francis has been focused primarily on issues raised by COVID-19 for health care this year. Although not foregrounded as environmental issues, pandemics such as COVID-19 raise critical questions about the human-environment interface and the structure of the social environment. Much of her work this year has been devoted to issues of ethics, infectious disease, law, and disability. Publications include: Timothy W. Farrell, Lauren E. Ferrante, Teneille R. Brown, Leslie P. Francis et al., AGS Position Statement: Resource Allocation Strategies and Age-Related Considerations in the COVID-19 Era and Beyond, 68 Journal of the American Geriatrics Society 1136 (2020); Timothy W. Farrell, Leslie P. Francis, Teneille R. Brown, et al., Rationing Limited Healthcare Resources in the COVID‐19 Era and Beyond: Ethical Considerations Regarding Older Adults, 68 Journal of the American Geriatrics Society 1143 (2020); Ryan H. Nelson and Leslie P. Francis, Intellectual Disability and Justice in a Pandemic, KIEJ Special Issue on Ethics, Pandemics, and COVID-19 (forthcoming 2020); and Leslie P. Francis, “COVID-19, Down Syndrome, and Employment Discrimination, Oklahoma Law Review Symposium (Oct. 16), https://oklahoma.zoom.us/webinar/register/WN_Zf8-SpsUQ8OKntF5xZ_bSA. She has an editorial forthcoming in the American Journal of Public Health on the ethics of natural experiments in a pandemic.
During the past summer, Professor Bob Keiter served as the Julian Simon Fellow at the Property and Environment Research Center in Bozeman, Montana. He recently published The Greater Yellowstone Ecosystem Revisited: Law, Science, and the Pursuit of Ecosystem Management in an Iconic Landscape, 91 U. Colo. L. Rev. 1 (2020), which updated his 1989 article examining the early days of the Greater Yellowstone Ecosystem concept and related ecosystem management ideas. He has also published two book chapters: John Wesley Powell and the National Park Idea: Preserving Colorado River Basin Public Lands, in Vision and Place: John Wesley Powell and Reimagining the Colorado River Basin (Jason Robison et al., eds.) (Univ. of California Press, 2020); National Parks: Preserving America’s Natural and Cultural Heritage, in The Environmental Politics and Policy of Western Public Lands (Brent Steel et al., eds.) (Oregon State Univ. Press, 2020). His most recent article entitled The Emerging Law of Outdoor Recreation on the Public Lands is forthcoming in 51 Envtl. L. __ (2021), while another entitled Landscape Conservation, Wildlife Management, and the Federal Public Lands: A Primer is forthcoming in 56 Idaho L. Rev. ___ (2020). Through the Wallace Stegner Center, Bob has been serving as co-chair for a “National Policy Dialogue on Outdoor Recreation on the Public Lands.” His speaking engagements have included several talks: “Landscape Conservation” at the University of Colorado’s Getches-Wilkinson Center symposium on public lands; “The Greater Yellowstone Ecosystem Revisited: Law, Science, and the Pursuit of Ecosystem Management in an Iconic Landscape,” at Montana State University’s Ecology Center; “Landscape Conservation, Wildlife Management, and the Public Lands” as part of a tribute to Professor Dale Goble at the University of Idaho (Boise campus); and “John Wesley Powell and Reimagining the Colorado River Basin: The Role of Public Lands,” at Northern Arizona University’s 15th Biennial Conference of Science & Management on the Colorado Plateau & Southwest Region.
Professor Nancy McLaughlin has been busy this year on the conservation easement front. Along with the other members of the ABA’s Conservation Easement Task Force, she published a report recommending reforms to the federal charitable deduction for easement donations that was presented to Treasury Department officials in the summer of 2019. Along with other law professors and experts, she filed two amicus briefs in support of the government in a high-profile national case involving a $97.37 million deduction claimed by a real estate developer for the donation of two conservation easements. She served as an Observer to the Uniform Law Commission’s new Easement Relocation Act and provided the drafting committee with critical assistance regarding the Act’s interaction with conservation easements. She organized and presented at the annual Trying Times: Conservation Easements and Federal Tax Law program, a five-panelist virtual program that drew an audience of over 400 land trust professionals, conservation attorneys, government attorneys, other government employees, and academics from across the nation.
Addressing the most pressing issues of the day, she recently published Some Dirty Realities About Syndicated Conservation Easements, 167 Tax Notes Federal 1729 (June 8, 2020) (co-authored with Stephen J. Small, Mark Weston, and Philip Tabas); Amendment Clauses in Easements: Ensuring Protection in Perpetuity, 168 Tax Notes Federal 819 (Aug. 3, 2020), and Special Report—Conservation Easements and Development Rights: Law and Policy, 169 Tax Notes Federal 531 (Oct. 26, 2020). Professor McLaughlin’s scholarship was also recently cited with favor by the Sixth Circuit in Hoffman Properties v. Commissioner, 956 F.3d 832 (6th Cir. 2020), in which the court denied a $15 million deduction for the donation of a façade easement that failed to satisfy the critical “protected-in-perpetuity” requirement. She also has been quoted in the national media, for example: Richard Rubin, IRS Pursues Criminal Cases on Land-Tax Donation Deals, Wall Street Journal (Nov. 12, 2019) and Joshua Partlow, Jonathan O’Connell, and David A. Fahrenthold, Trump got a $21 million tax break for saving the forest outside his NY mansion. Now the deal is under investigation, The Washington Post (Oct. 9, 2020).
Professor McLaughlin is also serving as Associate Reporter for the first edition of the Restatement of the Law of Charitable Nonprofit Organizations, which is scheduled to be published by the American Law Institute at the end of this year.
Professor Danya Rumore, Ph.D., is the Director of the Wallace Stegner Center’s Environmental Dispute Resolution (EDR) Program. She is a Research Associate Professor in the S.J. Quinney College of Law, as well as a faculty member in and the Department of City and Metropolitan Planning at the University of Utah. Dr. Rumore’s work, teaching, and research focus on supporting collaborative problem-solving around complex environmental and public policy challenges. During this past year, she taught a Negotiation and Dispute Resolution in the Public Sector graduate-level course for the University of Utah College of Architecture and Planning and a Negotiating Environmental Agreements course for Vermont Law School. She developed tailored professional trainings on a range of topics related to collaboration, conflict resolution, negotiation, and facilitation for organizations including the National Park Service, the Wildlands Network, the Davenport Institute for Public Engagement and Civic Leadership, and Training Resources for the Environmental Community, among others. She also co-taught the EDR Program’s Short Course on Effective Natural Resources Collaboration professional training. Dr. Rumore gave a number of invited talks on collaboration-related topics, including for the joint conference of the Utah League of Cities and Towns, Wasatch Front Regional Council, and Utah American Planning Association Chapter; the Stanford Bill Lane Center for the American West; and the South Utah County Business Summit. Additionally, she is providing coaching and facilitation support for a number of collaborative efforts including the Zion Regional Collaborative and the Utah Wildlife Connectivity Working Group. Earlier this year, Dr. Rumore and colleagues at Utah State University launched the Gateway and Natural Amenity Region (GNAR) Initiative (www.usu.edu/gnar/) to support research, education, and capacity aimed at addressing the unique planning- and development-related challenges facing gateway and amenity communities throughout Utah and the mountain west. With colleagues, she published a seminal article on “Planning and Development Challenges in Western Gateway Communities” in the Journal of the American Planning Association this summer. Dr. Rumore serves on the leadership teams for both the national Association for Conflict Resolution Environment and Public Policy Section (ACR EPP) and the national University Network for Collaborative Governance (UNCG).
Professor John Ruple has been busy researching and writing about reducing greenhouse gas emissions from oil and gas development, the National Environmental Policy Act (NEPA), and public lands.
He collaborated with Nada Culver from the National Audubon Society and Wallace Stegner Center Fellow Jamie Pleune to publish A Road Map to Net-Zero Emissions for Fossil Fuel Development on Public Lands, 50 Envtl. L. Reporter News & Analysis 10734 (Sept. 2020), and the more comprehensive forthcoming article The BLM’s Duty to Incorporate Climate Science into Permitting Practices and a Proposal for Implementing a Net Zero Requirement into Oil and Gas Permitting, 32 Colo. Nat. Res., Energy & Envtl. L. Rev. __ (2021). Together, these two articles argue that the Bureau of Land Management is legally obligated to consider greenhouse gas emissions when planning for and permitting oil and natural gas development, and to act to reduce those climate impacts. The articles then chart a path to emission reductions that relies entirely on existing legal authorities.
Professor Ruple authored four articles about NEPA: He collaborated with College of Law alum Kayla Race to publish Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases, 50 Envtl. L. 479 (2020). Ruple and Race reviewed 13 years of NEPA litigation, concluding that just 0.22 percent of NEPA decisions result in litigation, and carefully quantifying the time spent on both NEPA analysis and in litigation. Building on those efforts, Ruple collaborated with Law Professor Heather Tanana to publish NEPA at 50—An Analysis of the Data in the Courts, 66 Rocky Mtn. Min. L. Inst. __ (forthcoming 2020). After reviewing years of data from multiple sources, the two Professors concluded that the burden posed by NEPA litigation is both overstated and falling, and that permitting delays are often misattributed to NEPA. In Debunking the Myths Behind the NEPA Review Process, 35:1 Natural Res. & Env’t 14 (2020), also with Professor Tanana, the duo debunk some of the most common myths about NEPA compliance and litigation. Ruple also worked with U of U statistics professor Michael Tanana and College of Law alum Merrill Williams to publish Does NEPA Help or Harm ESA Critical Habitat Designations? An Assessment of Over 600 Critical Habitat Rules, 46 Ecology L. Q. 829 (2020), showing that the environmental review required by NEPA led to faster habitat designations. Together, these four articles provide a highly detailed assessment of the “Magna Carta” of environmental law and offer valuable insight into how compliance with this important law can be enhanced without sacrificing NEPA’s goals of public engagement and informed federal decision-making that results in improved environmental stewardship.
On the public lands front, Professor Ruple published chapters on Western Public Land Law and the Evolving Management Landscape, as well as Wild Places and Irreplaceable Resources: Protecting Wilderness and National Monuments in The Environmental Politics and Policy of Western Public Lands (Ore. State Univ. Press 2020). Ruple also partnered with Professor Phoebe McNeally (Geography), Professor Heather Tanana, and second- and third-year law students to evaluate federal court cases involving U.S. Forest Service planning and plan implementation. Their work set the stage for an upcoming effort to review 36,000 planning decisions to identify the issues most likely to result in administrative appeals and litigation. The team hope that their work will support regulatory reform that results in stronger decisions that better protect forest resources. Professor Ruple also gave the keynote address, What Atticus Finch and Charles Wilkinson Taught Me About Sagebrush Rebels, at the National Association of Park Rangers’ annual meeting.
Turning to the other side of the world, Ruple worked with Professors Robin Craig and Heather Tanana, and with recent College of Law alum Connor Arrington, to write Pakistan Water Management—The Legal and Institutional Framework: Lessons Learned and Opportunities for Improvement (U.S. Pakistan Ctr. for Advanced Stud. in Water & Wallace Stegner Ctr. for Land, Resources and the Env’t 2019). Professor Ruple and Stegner Center Director Bob Keiter are currently working on a series of U.S. State Department sponsored video lectures on American public land law that which will kick off a collaborative effort to strengthen environmental law in Ethiopia.
In his free time, John volunteers on the Board of Directors for Friends of Cedar Mesa. Whenever possible, he escapes to our public lands on his feet, skis, bike or in a whitewater raft.
Alex Skibine’s publications include The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands, (forthcoming in the American Indian Law Review); Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Non-Members, 67 UCLA L. Rev. Disc. 166 (2019); and From Foundational Law to Limiting Principles in Federal Indian Law, 80 Mon. L. Rev. 67 (2019).
This year, Professor Heather Tanana has stepped up to respond to the pandemic in Indian country. She led the formation of Utah Tribal Covid-19 Relief to provide immediate relief to Utah’s Tribal communities. She has spoken at multiple forums regarding the impact of COVID-19 in Indian country, including at the Utah State of Reform, Stegner Center Green Bag, and Network for Public Health Law. In recognition of her efforts, Tanana was awarded 2020 Attorney of the Year from the Energy, Natural Resources & Environmental Law Section of the Utah State Bar and the Jimi Mitsunaga Excellence in the Law Award from the Utah Minority Bar Association.
Professor Tanana continues to contribute to scholarship at the intersection of environmental law and federal Indian law. In collaboration with Dean Elizabeth Kronk Warner, Professor Tanana authored Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond, 45 Harvard Envtl. L. Rev. __ (2021). The article discusses the recent U.S. Supreme Court ruling in McGirt v. Oklahoma and its implications for Indian country and natural resource development generally from an environmental justice lens. She is also overseeing the research team to provide universal access to clean water for Tribes within the Colorado River Basin as part of the Water & Tribes Initiative. This work seeks to raise awareness and understanding about the lack of adequate water in Tribal communities and to make tangible progress on providing access.
Professor Tanana is also working on projects involving the National Environmental Policy Act (NEPA) and climate change. With Professor Ruple, she co-authored NEPA at 50—An Analysis of the Data in the Courts, 66 Rocky Mtn. Min. L. Inst. __ (forthcoming 2020) and Debunking the Myths Behind the NEPA Review Process, 35:1 Natural Res. & Env’t 14 (2020). Based upon extensive data, these articles take a closer look at NEPA in practice and challenge common misconceptions about the law. With respect to climate change, Dean Kronk Warner and Professor Tanana are providing a Tribal perspective to the climate change chapter in ELI’s treatise, Law of Environmental Protection.
Professor Tanana is a member of the Rocky Mountain Mineral Law Foundation Diversity and Inclusion Task Force. She also serves as Vice Chair on the board of the Urban Indian Center of Salt Lake and Chair of the Indian Child Welfare Act committee of the Indian Law Section – Utah State Bar.
Elizabeth Kronk Warner
Elizabeth Kronk Warner had the privilege of assuming the deanship at the S.J. Quinney College of Law on July 1, 2019, after Bob Adler stepped down following a successful 7 years in the position. Although her responsibilities as dean keep her busy, she still welcomes the opportunity to engage in research and scholarship. She has three law review articles that have either been published or have been accepted for publication in the past year. These articles include: Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond, Harvard Environmental L. Rev. (forthcoming 2021) (co-written with Professor Heather Tanana); Changing Consultation, U.C. Davis L. Review (forthcoming 2020) (co-written with Dr. Kyle Whyte and Kathy Lynn); and Learning From Tribal Innovations: Lessons in Climate Change Adaptation, 49 Environmental Law Reporter 11130 (December 2019) (co-written with Morgan Hepler). She also continues to give numerous presentations, and several of these over the past year have related to environmental law. She presented Tribal Environmental Law as part of the Global Change and Sustainability Center Seminar at the University of Utah on Jan. 14, 2020. She gave a presentation on tribal environmental law to the Annual Utah Indian Law Section Seminar on September 16, 2019. She gave a presentation on the First Nations Panel at the Global Forum on Rights of Nature and the Right to a Healthy Environment (Oct. 1, 2020) (virtual).