The water law scholarship of Jim Huffman and Janet Neuman: prologue to the festschrift.

• Author: Blumm, Michael C.
• Position: Lewis & Clark College Law School - Testimonial

Jim Huffman and Janet Neuman have both been prolific water law scholars for many years. Jim began his water law writings in the 1970s and has assured us that he will not cease in his retirement from teaching. Janet began her scholarship in the 1990s and actually was accelerating her scholarship at the time of her retirement. Like Jim, she insists that she will remain a prominent figure in the water law journal literature. And her magnum opus, her treatise on Oregon water law, has just been published. (1)

I cannot in this space be as comprehensive as Jan's treatise, although appended to these remarks are lists of each of their water writings. (2) Here, I survey selected articles to supply a flavor of the themes that animated their work over the years.

1. JIM HUFFMAN'S WATER LAW SCHOLARSHIP

   Jim Huffman has long been an iconoclastic advocate for private property rights, including water rights. He remains deeply skeptical of government regulation of private rights, and he claims that public rights do not--or should not--exist. For Jim, the quintessential normative scholar, the invisible hand of the private market is omnipresent and benign. Government interference with the workings of markets, in Jim's view, almost always leads to perverse results or unintended consequences. He has always been willing to challenge those who would defend government intervention or regulation. (3)

   Jim has been less interested in explaining what the law is than in criticizing existing doctrine and arguing for reform. His project is to change the law, change the underlying philosophy, and change the country! Jim is in short a revolutionary scholar.

   So, I suppose it was no surprise that Jim would seek to enact his vision of the good by running for political office. Maybe the surprise was he won the Republican nomination for the United States Senate in 2010 so easily, (4) and he then proceeded to collect nearly forty percent of the vote in the general election against an entrenched incumbent. (5)

   Even those who did not share Jim's vision had to admire his courage in leaving the academic world for the political. But actually, Jim's career has always been trailblazing. His deanship--the longest in the modern history of Lewis and Clark Law School--was characterized by innovation: he was always encouraging the faculty to try new things, to arrange conferences or visits, to found law reviews, and to establish moot court competitions. As dean, Jim was a facilitator, an activist, in the best sense that term. (6) And Dean Huffman was non-ideological in that role.

   But a sampling of Jim's water law scholarship shows that Jim's nonideological approach to his deanship did not characterize his scholarship. The vast majority of his writings contain a distinct point of view: he persistently argues for the primacy of private rights. Jim may in fact be the principal advocate in the legal academy of "free market environmentalism." (7)

   Turning to his water law writing, Jim's first substantial contribution was a multivolume analysis of instream flows in the Pacific Northwest, (8) a comparative analysis that still provides useful information thirty years later. A few years later, Jim levied his first sustained criticism of the public trust doctrine in an article that critiqued the writing of four prominent water law scholars: Professors Joseph Sax, Charles Wilkinson, Hap Dunning, and Ralph Johnson, all of whom he named in the title to the article. (9) Adopting a "Langdellian methodology"--by which he meant looking closely at the case law to determine what the law is--he accused all four scholars of not taking a hard look at the public trust doctrine case law and instead invoking their own personal preferences about the trust doctrine.(10) Jim, who is quite skeptical of both public rights and judicial lawmaking, claimed that the public trust doctrine is a poor remedy for the failure of public allocation of natural resources; instead, he argued that improvements should come through using the private rights system of allocation. (11) Thus began a long strand of Jim's scholarship critical of the public trust doctrine.

   In a 1987 article, Jim added the reserved rights doctrine to his criticism of the public trust doctrine, referring to both as myths. (12) He claimed that both circumvented the Constitution's Takings Clause by trumping private rights with prior public rights. (13) The effect, he maintained, was to allow judges to unconstitutionally reallocate property rights. (14)

   A couple of years later, Jim claimed that the public trust doctrine was "a fish out of water" and began to question the historical legitimacy of the doctrine. (15) He also claimed that the doctrine conflicted with the principles of constitutional democracy. (16) Like the formalists of the nineteenth century, Jim attempted to fit the public trust doctrine into a category; in this case, as a traditional private trust. (17) He claimed that it did not fit that category because if the public were the equivalent of the settlor--the founder of the trust--they are also its beneficiaries, and in trust law the settlor and the beneficiaries must be separate entities. (18) Thus, according to Jim, the public trust is no trust at all. (19)

   Jim also challenged the public trust doctrine by claiming that there exist no individual or public rights in the environment. (20) He did acknowledge that the trust doctrine could be embedded in state constitutions, (21) but claimed that it could not disturb vested property rights--as he alleged the Montana public trust doctrine had done, (22) a particular source of irritation to this native Montanan.

   In 1991, in response to Charles Wilkinson's apocryphal entombment of the prior appropriation doctrine, (23) Jim wrote an amusing reply. (24) Writing as the personification of Mr. Prior Appropriation from Twodot, Montana, Jim claimed that the doctrine of prior appropriation was just "a simple, but damn good, idea" for allocating scarce water resources in the West. (25) Jim accused the "gov'ment" and "fuzzy headed bureaucrats and politicians" of abusing the doctrine and attempting to use notions of the public interest to get allocations of water without compensating prior users. (26)

   Jim proceeded to celebrate Federal Circuit Judge Jay Plager's takings opinions in two cases from Florida in 1994, referring to them as ushering in a "sea change" in takings jurisprudence. (27) Plager found takings in both cases largely by rejecting the balancing called for by the Supreme Court's decision in Penn Central Transportation Co. v. New York City (28) in favor of extending the application of the Court's decision in Lucas v. South Carolina Coastal Council, (29) which created a new, categorical, per se type of unconstitutional takings. However, that extension was later apparently rejected by the Court in the Lake Tahoe case. (30)

   Applauding Plager's "no balancing" approach, Jim nonetheless criticized the Judge's assumption that some economic losses are not takings. (31) He claimed that an invigorated takings clause would not mean less environmental regulation, merely providing just compensation to landowners. (12) This assertion is apparently undercut by the results of Oregon's statutory compensation scheme for landowners, which in practice has proved to be a large-scale deregulatory scheme. (33)

   Jim's next foray into water law jurisprudence was a full-scale assault on the historical legitimacy of the public trust doctrine. He contended that "an inconvenient truth" was that neither Roman nor English law recognized the doctrine as an antiprivatization mechanism. (34) He proceeded to cite examples of privatization of submerged lands in both Rome and England. (35) Interestingly, Jim agreed with the nineteenth century expansion of the public trust doctrine from tidal to navigable-in-fact waters, (36) but he vehemently opposed the twentieth century evolution of the doctrine to include recreational waters and environmental protection. (37)

   In...