University of Colorado Law Review

Volume 74, Issue 2, Spring 2003

FOREWORD

In our lead article, Professor Gregory A. Hicks and Professor Devon G. Peña examine the history and contemporary prospects of the Hispano irrigation communities of Colorado's Rio Culebra watershed, at tributary system of the Rio Grande Rive in the southern San Luis Valley. The heart of these communities was and remains the acequias, a Spanish term that refers both to the community irrigation ditches and to the characteristic practice of allocating and managing irrigation water as a community resource on the basis of equity and necessity. Professors Hicks and Peña describe the origins of the Culebra acequias communities and offer an account of the historical and environmental circumstances that formed these communities. They then situate the Culebra acequias within the history of water law in Colorado, describing the absorption of the Culebra acequias into the system of appropriative water rights that resulted in Colorado's failure legally to recognize alternative systems of water allocation. The norms and practices of the appropriative water rights system, however, have not been altogether accepted within the Culebra acequias. Water users in these communities remain committed to older practices of allocation, which they see as necessary to maintain a flourishing and sustainable watershed landscape. Hicks and Peña describe the environmental assets created by acequia water use practices and find in the acequia landscape principles and practices of water use and water governance that promote sustainability and ecosystem health. The authors emphasize the importance of a multi-cultural approach to understanding western water history and water institutions and offer recommendations for the protection of acequias as valuable examples of community management of watershed resources.

In our second article, Professor Johnston develops a formal model of the centralization of natural resource regulation and applies that model both to explain how and why the federal scheme of American natural resource regulation arose and to critique the Supreme Court's constitutional federalism doctrine. According to this model, economic development and geographic market integration inevitably lead to political pressure for centralized control over the development of public natural resources. The model reveals the fundamental normative ambiguity of centralized controls over natural resource development. Centralized regulation of natural resource development attempts to correct the fundamental inefficiency caused by local regulation: the failure to internalize the full value of preserving open access resources. From a distributional point of view, however, centralized controls may penalize late-developing jurisdictions simply for being latecomers to the interjurisdictional development game.

Professor Johnston tests the model's predictions about the development of regulatory centralization against both historical and more contemporary data on the federal Endangered Species Act. Johnston presents original and previously unavailable date, which show that the Endangered Species Act unequally limits private land development across states, and which also show that congressional positions on the ESA may depend on whether the ESA actually applies to limit land development in a representative's state or district rather than on political party affiliation.

These implications of the model have direct application to the Supreme Court's Dormant Commerce Clause jurisprudence. According to Professor Johnston, the Court has consistently misunderstood state schemes that give state residents discriminatory access to state natural resources as economic protectionism when, as the model predicts, such access may be necessary to create political support for the conservation of state natural resources.

In our third article, Professor Lewyn examines the constitutionality of proposed zoning regulations. The American Planning Association , a nationwide organization of land use planners, recently published a set of model zoning state laws entitled the "Growing Smart Legislative Guidebook". The Guidebook's model laws authorize cities and counties to enact a wide variety of land use regulations. Some property rights activists have asserted that the Guidebook's proposed statutes violate the Free Speech Clause of the First Amendment, the Takings Clause of the Fifth Amendment, and other constitutional provisions. Professor Lewyn addresses the attacks on the Guidebook by comparing the Guidebook's model statutes with existing case law. Lewyn concludes that the Guidebook's most controversial provisions are constitutional under existing case law interpreting the federal Constitution.

Our first comment esamines the unique problems presented by conflicting state and tribal vehicle codes. When state and tribal vehicle codes impose different requirements, owners of vehicles hat comply with tribal codes may face state penalties when they travel outside reservation boundaries. Courts have had little success determining whether Indian law principles require states to honor tribal codes or whether states have no duty to acknowledge the tribal codes. In two recent, cases, for example, the Ninth and Tenth Circuit Courts of Appeals applied different analyses to this question and reached opposite outcomes. The Ninth Circuit applied taxation precedent and determined that states may regulate tribes' off-reservation activities. By contrast, the Tenth Circuit applied preemption analysis to allow balancing of state and tribal interests and suggested that states lack authority to regulate the same activity. the author explores the different analyses these courts applied and argues that the Tenth Circuit correctly applied preemption analysis. The author then identifies some consequences of applying traditional preemption analysis to the unusual situation of conflictin vehicle codes and proposes alternative forms of preemption analysis that better protect tribal interests. Finally, the author concludes that, to best protect their sovereignty, tribes seek legislative, rather than judicial, solutions.

In our second comment, the author addresses the effectiveness of the Violence Against Women Act's full faith and credit provision as applied in Indian country. Specifically, the author considers whether plaintiffs can compel tribes to implement the full faith and credit provision of the Violence Against Women Act without unduly compromising tribal sovereignty. The author establishes that Congress has the authority to enact legislation abrogating tribal sovereignty, and that the Violence Against Women Act's full faith and credit statute applies to tribes. The comment then explores legal mechanisms that an individual injured by a tribe's failure to enforce a foreign protection order could use to overcome tribal sovereign immunity and compel a tribe to comply with the Act in its current form. The author determines, however, that the likelihood of compelling tribes to comply with the federal statute through litigation is small. Consequently, the author explores the possibility of conditioning federal law-enforcement funding on tribal enactment of full faith and credit statues that comply with the act, but concludes that such conditioning would conflict with the long-held federal policy favoring tribal self-governance. The author determines that to accomplish the goal of the Violence Against Women Act's full faith and credit provision, Congress must expand the statute so that it contains an enforcement mechanism. She points out that Congress should tread carefully, however, to ensure that the legislation reflects dual objectives: the effectuation of the full faith and credit provision and deference to tribal sovereignty and self-determination. The author suggests that these competing goals are best reconciled by allowing interested parties to sue tribal officials for prospective injunctive relief in the federal courts.

In our first casenote, the author analyzes the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. In that case, the Court struck down the Army Corps of Engineers' "Migratory Bird Rule," under which the Corps had claimed regulatory jurisdiction over isolated waters that harbor and provide habitat for migratory birds. In Solid Waste Agency, the Court held that this exercise of the Corps' authority was inconsistent with Congress' intent. By resolving the case on this basis, however, the Court avoided the question whether Congress' power under the Commerce Clause allows it to grant the Corps the authority promulgate the Migratory Bird Rule. After reviewing the evolution of the Supreme Court's modern Commerce Clause jurisprudence and its recent decisions in United States v. Lopez and United States v. Morrison, the author discusses the background of Solid Waste Agency and the Supreme Court's decision. The author then confronts the constitutional question avoided by the Court and examines the Court's motivation for avoiding that question. She suggests that the Court's decision was likely driven by the difficulty of applying the recent Commerce Clause test to federeal environmental statutues, and the reluctance of some members of the majority to depart from established precedent sustaining environmental legislation under the Commerce Clause. Finally, the author proposes that in reviewing federeal environmental legislation directed at activity that is "intermediate" (between economic and noneconomic) in nature, the Supreme Court should not limit itself to the narrow economic/noneconomic analysis developed in its recent Commerce Clause cases. Instead, the Court should take into account the broad economic purpose of the activity being regulated and acknowlege the national interest in protection of natural resources.

Finally, in our second casenote, the author discusses whether the government must compensate water users when their water rights are limited to protect endangered species according to the mandates of the Endangered Species Act. In Tulare Lake Basin Water Storage District v. United States, the first case to reach this question, the United States Federal Court of Claims concluded that limiting water use rights in this way is a physical taking requiring compensation. Although often courts will not reach the takings issue due to the presence of contract language that limits the federal government's liability for water shortages, where, as in Tulare, this barrier is not present, the author concludes that the more appropriate analysis is whether a regularory rather than a physical taking occurred. Based on the unique naure of water rights and the fact that the governmental action in this case was a regulation of the use of water rather than a physical occupation, the Tulare court should have analyzed the takings claim under the Supreme Court's regulatory takings jurisprudence. Nevertheless, because the court finally analyzed the takings issue, Tulare remains an important step toward resolving the conflict between western water rights and the mandates of the Endangered Species Act.

THE EDITORS