An Evolutionary Theory of Administrative Law

Southern Methodist University | May 25th, 2018

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a jud

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue that an evolutionary framework provides an informative framework for understanding administrative legal change. I provide three case studies that demonstrate the administrative evolution of the Endangered Species Act. In spite of tremendous advances in conservation, fundamental changes in scientists’ understanding of human impacts on the natural world, and increasingly strident clashes over private property rights and endangered species, the Act has remained largely unchanged for the last 35 years. In a functioning legislative system, the Act would have been amended to accommodate many of these changes. Instead, the case studies show a mechanism of legal change through agency action analogous to the mechanisms underlying biological evolution. Other commentators have argued the administrative state stymies evolution of the law, but this research contradicts that view. Applying an evolutionary framework to administrative actions creates a new theory of administrative evolution of the law, placing administrative analysis within the long tradition of evolutionary approaches to legal change used by commentators from Aristotle to Holmes. In contrast to traditional normative theories of administrative law, an evolutionary approach focuses on how change progresses over time. This theory of administrative evolution of the law also casts new light on a host of normative questions, from the role of judicial review to improvements in agency decision-making. Considering administrative actions within the broader context of the legal evolution promises a fruitful new approach to analyzing administrative law.

An Introduction to EcoAtlas: Applied Aquatic Science

San Francisco Estuary Institute (SFEI) | September 14th, 2016

The term “EcoAtlas” has been in use for over 20 years in association with the study, assessment, and reporting of aquatic resources in California. What began as “W

The term “EcoAtlas” has been in use for over 20 years in association with the study, assessment, and reporting of aquatic resources in California. What began as “Wetland Tracker” in 2000, with its goal of recording essential information about wetland restoration projects in the greater Bay Area, later blossomed into a broad technological ecosystem of interrelated tools, each focused on delivering specialized, program-focused features, as defined by key stakeholder groups. Having evolved over time, EcoAtlas comprises a diverse toolset, but the collection shares common libraries, common approaches, and common development methodologies. Though each emerged from different funding opportunities and requirement drivers, the toolset collectively addresses a synthesized “whole watershed approach.” Whether estimating the ideal riparian buffer width for a given stream or assessing the health of a wetland at the edge of the estuary, the EcoAtlas tools allow practitioners to deploy the right tool for the job across the entire watershed, thereby producing a complete picture through composite outputs.

An unprecedented coastwide toxic algal bloom linked to anomalous ocean conditions

American Geophysical Union (AGU) | October 9th, 2016

A coastwide bloom of the toxigenic diatom Pseudo-nitzschiain spring 2015 resulted in the largest recorded outbreak of the neurotoxin, domoic acid, along the North Ameri

A coastwide bloom of the toxigenic diatom Pseudo-nitzschiain spring 2015 resulted in the largest recorded outbreak of the neurotoxin, domoic acid, along the North American west coast. Elevated toxins were measured in numerous stranded marine mammals and resulted in geographically extensive and prolonged closures of razor clam, rock crab, and Dungeness crab fisheries. We demonstrate that this outbreak was initiated by anomalously warm ocean conditions. Pseudo-nitzschia australis thrived north of its typical range in the warm, nutrient-poor water that spanned the northeast Pacific in early 2015. The seasonal transition to upwelling provided the nutrients necessary for a large-scale bloom; a series of spring storms delivered the bloom to the coast. Laboratory and field experiments confirming maximum growth rates with elevated temperatures and enhanced toxin production with nutrient enrichment, together with a retrospective analysis of toxic events, demonstrate the potential for similarly devastating ecological and economic disruptions in the future.

Anadromous Salmonid Fish Passage Facility Design

National Marine Fisheries Service (NMFS) | July 26th, 2011

The primary effect of barriers (e.g., hydroelectric dams, water storage projects, irrigation diversions, impassable culverts, etc.) on Pacific salmonids is the reduction

The primary effect of barriers (e.g., hydroelectric dams, water storage projects, irrigation diversions, impassable culverts, etc.) on Pacific salmonids is the reduction in population abundance and productivity through excessive mortality and reduction in habitat quantity and quality. Individuals are lost to the population due to death from passing through turbines, disproportionate predation in reservoirs, entrainment at unscreened or improperly screened diversions, etc. Spatial structure and diversity have also been reduced by the loss of nearly 40% of salmon habitat from dams (NRC 1996), either through complete blockage or inundation. This document is intended to assist with improving conditions for salmonids that must migrate past barriers to complete their life cycle. The task involved in successfully passing fish upstream or downstream of an in-river impediment is a dynamic integration of fish behavior, physiology, and bio-mechanics with hydraulic analysis, hydrologic study, and engineering. Installing a fish passage structure does not constitute providing satisfactory fish passage unless all of the above components are adequately factored into the design. The following document provides criteria, rationale, guidelines, and definitions for the purpose of designing proper fish passage facilities for the safe, timely, and efficient upstream and downstream passage of anadromous salmonids at impediments created by artificial structures, natural barriers (where provision of fish passage is consistent with management objectives), or altered instream hydraulic conditions. This document provides fishway facility design standards for the National Marine Fisheries Service, and is to be used for actions pertaining to the various authorities and jurisdictions of NMFS, including Section 18 of the Federal Power Act (FPA), the Endangered Species Act (ESA), and the Magnuson-Stevens Fishery Conservation and Management Act (MSA) in the Northwest Region (NWR). This document intends to provide generic guidance as an alternative to active participation by NMFS engineers in a design process, for the purpose of providing designs that will be acceptable for fishways that fall within NMFS jurisdictions. If passage facilities are designed and constructed in a manner consistent with these criteria, adverse impacts to anadromous fish migration will be minimized. Instances will occur where a fish passage facility may not be a viable solution for correcting a passage impediment, due to biological, sociological, or economic constraints. In these situations, removal of the impediment or altering operations may be a suitable surrogate for a constructed fish passage facility. In other situations, accomplishing fish passage may not be an objective of NMFS because of factors such as limited habitat or lack of naturally occurring runs of anadromous fish upstream of the site. To determine whether NMFS will use its various authorities to promote or to prescribe fish passage, NMFS will rely on a collaborative approach, considering the views of other fisheries resource agencies, Native American Tribes, non-government organizations, and citizen groups, and will strive to accomplish the objectives in watershed plans for fisheries restoration and enhancement. This document does not address aspects of design other than those that provide for safe and timely fish passage, and to some extent, preservation of aquatic habitat. Structural integrity, public safety, and other aspects of facility design are the responsibility of the principal design engineer, who should ensure that the final facility design meets all other requirements in addition to the fish passage criteria and guidelines contained in this document.

Anadromous Salmonids in the Delta: New Science 2006-2016

University of California, Davis (UC Davis) | July 1st, 2016

As juvenile salmon enter the Delta, they disperse among its complex channel network where they are subject to channel-specific processes that affect their rate of migrati

As juvenile salmon enter the Delta, they disperse among its complex channel network where they are subject to channel-specific processes that affect their rate of migration, vulnerability to predation, feeding success, growth rates, and ultimately, survival. In the decades before 2006, tools available to quantify growth, dispersal, and survival of juvenile salmon in this channel network were limited. Fortunately, thanks to technological advances, much has been learned over the past decade about the role of the Delta in the life cycle of juvenile salmon. One of the most important advances during the past decade has been the widespread adoption of acoustic telemetry techniques. Use of telemetry has shed light on how survival varies among alternative migration routes and the proportion of fish that use each migration route. Chemical and structural analysis have provided insights about when juveniles left their natal river and provided evidence of extended rearing in the brackish or saltwater regions of the Delta. New advancements in genetics now allow individuals captured by trawls to be assigned to specific runs. Detailed information about movement and survival in the Delta has spurred development of agent-based models of juvenile salmon that are coupled to hydrodynamic models. Although much has been learned, knowledge gaps remain about how very small juvenile salmon (fry and parr) use the Delta. Understanding how all life stages of juvenile salmon grow, rear, and survive in the Delta is critical for devising management strategies that support a diversity of life history strategies.

Analyses of Rotary Screw Trap Sampling of Migrating Juvenile Chinook Salmon in the Stanislaus River, 1996-2005

Delta Stewardship Council (Delta Council) | August 1st, 2006

Annotated Bibliography for Sycamore Alluvial Woodland Habitat Mapping and Regeneration Studies Project

San Francisco Estuary Institute (SFEI) | February 27th, 2017

The California sycamore (Platanus racemosa) is a riparian tree native to California and northern Baja California. California sycamore is the dominant species in sycamore

The California sycamore (Platanus racemosa) is a riparian tree native to California and northern Baja California. California sycamore is the dominant species in sycamore alluvial woodland (SAW), a habitat type defined as open to moderately closed, winter-deciduous broad-leafed riparian woodland dominated by well-spaced Platanus racemosa (Holland 1986), and California sycamore also occurs in the “Platanus racemosa woodland alliance” with various associated species (Sawyer, Keeler-Wolf, and Evens 2009). The central California sycamore alluvial woodland (SAW) habitat type is cited in the Santa Clara Valley Habitat Plan (VHP) as a “very rare and threatened land cover type,” and the VHP contains various goals to conserve and restore SAW habitat. The San Francisco Estuary Institute (SFEI) and H. T. Harvey & Associates (HTH), in conjunction with the Santa Clara Habitat Agency, have undertaken the Sycamore Alluvial Woodland Habitat Mapping and Regeneration Studies Project to assess biotic and abiotic factors that influence California sycamore stand health and regeneration. The study is intended to gather and generate data that will be used by the Santa Clara Habitat Agency to guide acquisition and management of California sycamore habitat to meet its conservation goals. 

Annual Ground-Water Discharge by Evapotranspiration from Areas of Spring-Fed Riparian Vegetation Along the Eastern Margin of Death Valley, 2000–02

U.S. Geological Survey (USGS) | July 1st, 2006

Annual Report of Activities October 1, 2013 to September 30, 2014, American River Group (ARG)

Delta Stewardship Council (Delta Council) | September 30th, 2014

Annual Report of Activities October 1, 2013, to September 30, 2014, Delta Operations for Salmonids and Sturgeon (DOSS) Technical Working Group

Delta Stewardship Council (Delta Council) | October 31st, 2014