Monthly Archives: March 2014

Remembering Prof. Joe Sax

Joe Sax died this week.  Joe was a longtime law professor at Colorado, Michigan, and UC Berkeley.  He was a prolific and influential scholar on water law, public lands, and the environment; he is considered one of the intellectual founders of American environmental law.  If you follow natural resources law you have probably heard his name, and may well have read some of his books or articles.  If you are lucky you not only know Joe’s work, but also got to know him personally.

I was fortunate to be a student of Joe’s at Michigan, although not fortunate enough to have him stay there until I graduated.  During his last semester in Ann Arbor I took his Public Lands Seminar and enjoyed it greatly; it was a challenging course but I learned a lot, and every week I was grateful for the chance to learn that subject from a true giant in the field.  After he left Michigan for California, our paths crossed many times over the years, and he was always very gracious to me both before and after I began teaching.

Joe wrote many important works, but might be best known for a landmark law review article he wrote at the dawn of modern environmental law, before Congress passed key statutes like the Clean Water Act.  The article focused on the potential to use an ancient legal principle called the Public Trust Doctrine as a tool for courts to protect natural resources.  It was a bold and innovative idea that caught on, especially in California; that state’s supreme court issued a decision in 1983 that not only protected scenic Mono Lake from being destroyed by Los Angeles’ water diversions, but also established the Public Trust Doctrine as a counterbalance to the Prior Appropriation Doctrine in California water law. 

Joe was revered by environmentalists and scholars, but not so much by the “water buffaloes,” the old-school water users and managers who still hold great power over water in the West.  During one law school summer I clerked for a firm in Denver that had many such clients.  The patriarch of the firm was an elderly man who was one of Colorado’s great water lawyers of the 20th century; when I met him, he asked where I was going to law school.  I told him, expecting him to respond with some pleasantry about Michigan being a fine school.  Instead he blew his stack.  “Michigan?!  Isn’t that where that Joe Sax teaches water law?!” he spat.  Taken aback, I said that Joe had left Michigan and I had instead taken water law from Robert Abrams.  But the old water buffalo had launched into a major tirade:  “The very idea of an environmentalist teaching water law!!”

Fortunately for me, I joined a different firm when I graduated, and learned a lot about Colorado water law in my brief time there.  I later spent ten years working on water issues in the environmental community.  Now, perish the thought, I teach water law myself.  In doing so I hope I can inspire students in the way Joe did, and I would love my writing to be half as influential as his.  Thanks for everything, Joe.  We’ll miss you.

 

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What Interior’s new #2 could mean for western rivers

Important news for western rivers out of Washington, DC this week:  the Senate voted unanimously to confirm Mike Connor as Deputy Secretary of Interior.  His confirmation was expected, but unanimity is still remarkable.  Senate Republicans often take issue with President Obama’s natural resource policies, and hold up his nominees for reasons that may have nothing to do with them, or with the agency.  (Connor’s confirmation was delayed for months because one GOP senator had issues with the White House over the Benghazi attack.  The Interior Department gets blamed for many things, but Benghazi has never been one of them.)

The Deputy Secretary’s job is highly significant because it is the #2 post at the most important agency for western rivers.  One of Interior’s key components is the Bureau of Reclamation, which Connor led from 2009 until now; Reclamation operates dams, delivers water and generates hydropower in 17 western states.  Interior also includes such agencies as the Bureau of Indian Affairs (BIA) and the Fish & Wildlife Service (FWS), to name just two.  Interior often plays multiple roles in a particular river basin.  In New Mexico’s Middle Rio Grande, for example, Reclamation delivers water for Albuquerque and for irrigation; BIA works to ensure that six Indian Pueblos in the basin get the water they are due; and FWS runs the magnificent Bosque del Apache National Wildlife Refuge, while also overseeing Endangered Species Act efforts to protect the silvery minnow and willow flycatcher.

Connor may be uniquely qualified for the Deputy Secretary gig–and I do not say that just because he is from New Mexico.  He has strong Native American connections, with a grandfather who was a leader of Taos Pueblo.  He is an engineer, and also an attorney who worked on water issues for Interior earlier in his career.  He was a key Senate staffer on water and energy issues, and one of his major accomplishments was crafting the 2009 SECURE Water Act.  And he earned high marks in his four-plus years as Commissioner of Reclamation.  His experience will be especially important now because his boss, Interior Secretary Sally Jewell, came into the job with basically no background in government. 

I see Connor’s new position as good news for western rivers.  The Supreme Court wrote in 1983 that “it may well appear that Congress was requiring the Secretary of the Interior to carry water on at least two shoulders” in serving both farmers (through Reclamation projects) and tribes.  In fact, it is worse than that, because Interior also has responsibilities for meeting the water needs of national parks, wildlife refuges, and endangered species.  Traditionally, Reclamation and its irrigators took priority–as illustrated by the fact that the top floor of Interior headquarters in DC is occupied by the Commissioner of Reclamation, not the Secretary.  But Connor understands the importance of Interior’s broader mission, and in his role as Deputy Secretary he can ensure that the agency carries water on more than two shoulders.

Still, Connor’s promotion has the potential to be a mixed bag, because he leaves behind big shoes to fill at an incredibly challenging time for the Bureau of Reclamation.  Most of the West, especially California, is locked in a punishing multi-year drought.  There are increasingly serious long-term supply shortfalls in key basins such as the Sacramento-San Joaquin, Rio Grande, and Colorado.  And Reclamation’s authorities are not well tailored to tackle 21st century challenges, especially in environmental restoration (as I wrote in my 2011 NewAdventures article).  So there is a lot riding on the Administration’s choice of Connor’s successor.  The new Commissioner needs to be someone who can lead Reclamation in resolving these big challenges, and becoming a more positive force for western rivers.

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