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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