James D. Bowen, The Collision of Land Use and Water Law in the Methow River Valley, 38 Gonz. L. Rev. 655 (2003).
Public lands law pertaining to federal special use permits can become so intertwined with the effect of the Endangered Species Act (ESA) on water law that unwinding the resulting issues can only come after exploration of both public lands law and water law. A current trend has surfaced where polarized ideological arguments “occur in each field without any reference to the other reflect[ing] an unfortunate tendency among scholars, [and especially practitioners], to fall into a postmodern trap in which they resist recognizing, and therefore ignore, the possible interconnectedness of legal developments in different fields.”
This article attempts to expose the current weakness of failing to consider both land use and water law arguments amongst the legal community when facts warrant such consideration. The Methow Valley case of Early Winters exemplifies the results from the collision of public lands and water law and demonstrates the inability of the legal community to recognize interrelated issues. Part II of this article provides a background of the case by discussing the geographical features of the beautiful Methow Valley followed by a discussion of the facts and decision of the case. Part III provides a basic legal background in public lands law pertaining to special use permits and state and federal water law concepts. Part IV analyzes the interrelated legal issues not included by the parties in Early Winters. After concluding in favor of the government, Part V continues with a discussion of a possible “takings” argument for the water rights holders in Early Winters. The article then concludes with some additional policy considerations…Read More