LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Brian D. Israel of Arnold & Porter LLP Speaker 5a: 24
A Few Concluding Thoughts…
As with statutory NRD claims, private claims not
typically allowed. The Vermont and upstate New York
case show the difficulty applying the public trust
doctrine to non-governmental claimants.
Importantly, courts are more willing to impose
injunctive relief (including restoration), than damages.
For example, in both Gold Run Ditch and Mono Lake,
the courts enjoined a single defendant, even though
multiple defendants contributed to the injury.
On the other hand, almost no pre-statutory cases
awarding damages, as in the North Dakota case.
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A Few Concluding Thoughts…
The cases – whether asserted pursuant to
modern statute or the ancient public trust doctrine
– are fact specific, involving complex evidentiary
and scientific issues.
A review of pre-statutory cases demonstrates that
the relative strength of NRD claims will depend
upon the nature of the harm; whether the claimant
is truly a trustee over the resource; the ability of
the government to establish causation and
baseline; and the type of relief sought.
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM