University of Colorado Law Review
Volume 77, Issue 2, Spring 2006
FOREWORD
In our lead article, Adverse Possession and Conservation: Expanding Traditional Notions of Use and Possession, Professor Alexandra B. Klass examines how the common law treats adverse possession of undeveloped land as compared to adverse possession of developed land. She finds that these differing standards subject millions of acres of undeveloped land to potential adverse possession even when the owners' very purpose for holding the land was to prevent development. Professor Klass argues that crafters of the common law never invisioned a time when society would view lack of development as a proper and defensible use, but that such a time has come Thus, courts should modernize the adverse possession doctrine when applied to undeveloped lands, especially when the purchase or maintenance of such land is for the express purpose of conservation.
In our second article, Is Cost-Benefit Analysis Neutral?, Professor David M. Driesen challanges both the analytical and theoretical underpinnings of cost-benefit analysis through data provided by the Office of Management and Budget. He finds that cost-benefit fails to take into account factors that fall outside of the standard cost horizon for a cost-benefit analysis assessment. These routinely include environmental regulations, which may not prove cost effective in the short-term but become advantageous byond the cost horizon. Professor Driesen also debates whether cost-benefit analysis is neutral in theory when applied to environmental objectives. He finds that, relative to environmental issues, cost-benefit analysis is not value-neutral because standard methodologies inadequately assiss health benefits of increased environmental regulation compared to the short-term costs to industry.
Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, by Professor Noah D. Hall, presents a revolutionary model for framing and developing environmental policy utilizing cooperative horizontal federalism. Cooperative horizontal federalism allows states to create both substantive and procedural environmental protection standards without need for federal oversight or enforcement. Professor Hall cites the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact as an example of how states can cooperatively manage a common water source through mutally agreed upon minimum standards codified by state law and implemented on a state-by-state basis. Application of the cooperative horizontal federalism model would allow strengthened environmental regulation by permitting compact states to move beyond the minimum standards and craft policies in keeping with the states' environmental objectives.
In our first student comment, The Roadless Rule That Never Was: Why Roadless Areas Should Be Protected Through National Forest Planning Instead fo Agency Rulemaking, Heather S. Fredriksen argues that administrative rulemaking is too controversial and is subject to political pressures in order to properly protect roadless areas. Instead, the National Forest Service should use its planning authority under the National Forest Management Act ("NFMA") to establish roadless area policy. The NFMA specifically insulates forest management from such meddling through a seriews of procedural safeguards that ensure scientific credibility, adequate public participation, and ultimately, stability in roadless area policy.
Our second student comment, Safeguarding Colorado's Water Supply: The New Confluence of Title Insurance and Water Rights Conveyances by Julia S. Walters, analyzes the budding water rights title insurance industry and its effect on water rights conveyances in Colorado. As rights tranfers, it is becoming increasingly necessary to have a method of protecting water rights holders against unknown title defects and encumbrances. Ms. Walters argues that the emergence of water rights title insurance is a positive development because it protects water rights holders from potential inconsistencies and ambiguities in water rights records
Finally, Justin C. Konrad's The Shrinking Scope of Judicial Review in Norton v. Southern Utah Wilderness Alliance analyzes the U.S. Supreme Court's recent decision to narrowly read § 706(1) of the Adminstrative Procedure Act. This holding effectively limits judicial reveiw of agency inaction by denying § 706(1) reveiw of agency compliance with statutes that do not contain a discrete, legally required mandate. Mr. Konrad argues that the language and history of § 706(1) would better allow for proper judicial oversight.
JUDD R. CHOATE
Editor-in-Chief
University of Colorado Law Review