LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 3
“Some paintings become famous because, being durable, they are viewed
by successive generations, in each of which are likely to be found a few
appreciative eyes. I know a painting so evanescent that it is seldom
viewed at all, except by some wandering deer. It is a river who wields the
brush, and it is the same river who, before I can bring my friends to view
his work, erases it forever from human view. After that it exists only in my
mind’s eye.” 1
I. INTRODUCTION
Over the years, environmental pollution has spawned a great deal of public and private
litigation and related governmental investigations. One type of claim, however, has seen little
contemporary litigation: claims for natural resource damages (“NRD”). The relative dearth of
NRD claims being pursued is unusual given the breadth of available legal theories and the
compelling public interest at stake. The goal of this article is to explain the importance of NRD
programs and evaluate the process of bringing and defending NRD claims in the United States.
A strong NRD program benefits society in many diverse ways. Economic enhancement
and increased protection for environmental, recreational and historical interests are but a few
examples 2 . A U.S. Fish & Wildlife Service article espoused the benefits of a strong NRD
program:
NRDAR [Natural Resource Damage Assessment and Restoration Program]
ensures healthy fish and wildlife populations, as well as healthy lands and
waters on which they depend. NRDAR ensures healthy wetlands, which
support more species of wildlife than any other habitat type. Wetlands are
especially important to commercial saltwater fish and shellfish. Wetlands
benefit people by providing recreational opportunities, recharging groundwater
supplies, reducing flood damage, and controlling erosion. The economic
benefits of wetland resources are estimated at more than $1 trillion annually.
NRDAR benefits the nation’s 35 million anglers, 14 million hunters, and 63
million wildlife viewers who rely on healthy fish and wildlife populations for
their outdoor pursuits. NRDAR helps maintain a thriving economy by ensuring
1 ALDO LEOPOLD, A SAND COUNTY ALMANAC (1949).
2 See generally http://www.nj.gov/dep/nrr.
© 1
Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM