SPRING ISSUE 2020

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ARIZONA'S GROUNDWATER MANAGEMENT ACT AT FORTY: TACKLING UNFINISHED BUSINESS

BY: KIRSTEN ENGEL, ESTHER LOISELEUR, AND ELISE DRILHON

Forty years ago, motivated by dropping water tables and land subsidence, Arizona lawmakers enacted the 1980 Groundwater Management Act. At the time, the Act was hailed as the most far-reaching state legislation to control rampant groundwater depletion ever enacted. Despite the rhetoric, however, the Act never dealt with Arizona’s groundwater usage in a comprehensive manner and today its shortcomings are starkly apparent. Plunging water tables in rural areas are forcing homeowners and businesses to either drill deeper wells or relocate. Riparian areas are being lost, and with them, Arizona’s unique desert ecosystems.  

 

This Article argues that Arizona lawmakers must return to the drafting table to complete the work started in 1980—creation of a groundwater management code, based in science, that will ensure the equitable and sustainable use of groundwater across the entire State for current and future generations.

 

This Article suggests two options for future legislation: a property rights approach employing a cap and trade regime to achieve safe yield in individual groundwater basins, and a traditional regulatory scheme that balances the competing interests of the state and local government in groundwater regulation. The latter, labeled here as “cooperative localism,” would require minimum state standards for attaining and maintaining safe yield conditions in all of Arizona’s aquifers but would enable local governments to develop plans to meet those safe yield conditions. Whatever regulatory pathway Arizona chooses, forty years is not too late to craft a solution that fulfills the GMA’s promise of providing comprehensive protection to Arizona’s groundwater resources...

The vaquita marina is a critically endangered porpoise, only found in the Gulf of California, whose numbers have dropped precipitously over the last few years such that fewer than 20 individuals remain in the population. Their predicament is exacerbated by the fact that they are often killed as bycatch in Mexican fishing nets set out to catch totoaba, an endangered fish endemic to the same waters. The totoaba, like many other endangered species, are imperiled by the high prices they command in illegal wildlife markets in other countries. Although both vaquita and totoaba are protected by environmental regimes such as the U.S. Endangered Species Act and the Convention on International Trade in Endangered Species, efforts to apprehend and prosecute totoaba traffickers under these laws have been weak and ineffective, as have fishing bans and enforcement in Mexico. 

But wildlife traffickers who trade internationally in these endangered species are committing additional crimes such as smuggling, bribery, money laundering, and even drug trafficking. Yet existing tools and resources for these financial and other crimes, which include heavier penalties than environmental crimes, often go unused by law enforcement in investigating and charging wildlife traffickers. This article argues that wildlife traffickers should be more consistently prosecuted under these financial crime tools. Moreover, financial sanctions tools available to the U.S. Treasury could be effective for rapidly cutting off funds to the organized criminal networks engaged in wildlife trafficking.

THE MUSTANG SPIRIT OF THE WEST​: HOW TAKING A MORE COOPERATIVE APPROACH WILL SAVE OUR WILD MUSTANGS

BY: KATRINA DURAN

This Note examines the systematic mismanagement of wild horses and burros on America’s public lands and proposes a cooperative solution to these problems. America’s wild horses and burros have faced a long history of abuse which led to their protection under the Wild Free-Roaming Horses and Burros Act of 1971 (WHBA). However, between trying to work within the structure of an almost-50-year-old statute and a tight federal budget, the Bureau of Land Management (BLM) has not been able to find a proper balance between a thriving horse population and an overcrowded one. This Note proposes possible solutions to this problem. Cooperative federalism, voluntary intergovernmental agreements, or even proactive state legislation are all viable options that would allow the wild horses and burros to thrive on America’s public lands. In this instance, cooperative federalism seeks to set strict guidelines for states to meet in order for state governments to take over the care of these animals. Intergovernmental agreements would allow non-federal governments to take over the “smaller” tasks related to wild horses and burros in order to allow the Federal Government to focus on the task of long-term management and care of horses and burros in off-site holding facilities. Finally, proactive state legislating allows state governments to assume the care and control of horses and burros and it allows states to make the rules and suit them to their own state needs and resources.

INDIGENOUS NUCLEAR INJURIES AND THE RADIATION EXPOSURE COMPENSATION ACT (RECA): REFRAMING COMPENSATION TOWARD INDIGENOUS-LED ENVIRONMENTAL REPARATIONS

BY: KYLIE M. ALLEN

Indigenous Nations have borne a wide array of harms as a result of U.S. nuclear policy. The extraction and processing of nuclear materials and testing of nuclear weapons have caused extensive health problems for Indigenous Peoples. Given that most nuclear facilities are located on tribal and traditional lands, Indigenous Peoples have been disproportionately harmed by these practices. Radiation exposure has led to increased rates of several types of cancers, as well as lung and renal diseases and many other chronic conditions. Moreover, radiation has caused environmental degradation, contaminating water and food sources across tribal and traditional lands. Nuclear exposure has created multigenerational injuries for Indigenous Peoples, leading to permanent genetic problems and lasting ecological and spiritual consequences. This Note argues that the United States should fulfill its international human rights commitments by implementing comprehensive redress specific to the nuclear injuries of Indigenous Peoples. U.S. nuclear policy implicates a legacy of colonial violence and oppression; to that end, meaningful redress requires contextualized remedial approaches. 

In 1990, the United States Congress passed the Radiation Exposure Compensation Act (RECA), a compensatory statute that has awarded lump sums of money to categories of people exposed to nuclear radiation, such as uranium miners and people “downwind” of testing sites. However, this model falls short in important ways. With underinclusive coverage and narrowly constructed regulations, RECA effectively excludes some radiation-exposed Indigenous people. Considering the deliberate treatment of Indigenous Peoples and lands as disposable for the sake of U.S. policy, monetary compensation alone misses the mark in remedying lasting generational and environmental consequences. This Note examines international legal frameworks in order to highlight the human rights obligations that should inform the United States’ efforts to redress Indigenous Nations. Most importantly, the United States should defer to the leadership of Indigenous Peoples and the sovereignty of Indigenous Nations, recognizing that the scope of Indigenous self-determination encompasses determining the frameworks of nuclear redress as well as shaping the future of nuclear and environmental policies.

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