Showing papers in "Washington Law Review in 1995"

"Speculative" Antitrust Damages

Abstract: This article, published in 1995, describes antitrust law’s framework for proving individual harm as the basis for an award of treble damages. Antitrust damages are based on a standard of net individual harm, adapted (by the antitrust injury and Illinois Brick doctrines) to conform to a larger principle of net social harm. Net individual harm, so qualified, is measured by the difference between the plaintiff’s actual condition and its “but-for condition,” that is, the condition the plaintiff would have been in but for the defendants’ anticompetitive conduct. The plaintiff must project its but-for condition from a reasonably comparable base experience. In doing so, it must offer a theoretical model and an evidentiary foundation sufficient to isolate the defendant’s illegal conduct as the cause of the difference between the actual and but-for conditions.

Easements by Necessity: A Threshold for Inholder Access Rights under the Alaska National Interest Lands Conservation Act

Abstract: Nineteenth Century federal land grants created a legacy of private lands surrounded by federal land in the American West. Owners of such lands (inholders) were routinely granted access across federal land by implicit common law rights until the 1960s when federal land policy became more restrictive. In 1981, the Ninth Circuit held that the Alaska National Interest Lands Conservation Act (ANILCA) provided a statutory entitlement for inholder access. Since then, the Ninth Circuit also has held that ANILCA preempts any common law access rights. This Comment argues that the common law doctrine of easements by necessity remains a threshold basis for inholder access, and that ANILCA must be carefully construed to protect the property rights of inholders. In 1960, a member of the Washington Law Review asked, \"Is an easement across federal lands implied when the United States has granted a tract of land to which the grantee would otherwise have no practical means of access?\"' Based on the common law doctrine of easements by necessity,2 she concluded that such grantees, called inholders, were owners of easements across federal land.3 More than thirty years later, however, inholder access across public lands remains an unresolved legal controversy. The heart of this controversy is evident in an emerging split between the Ninth and Tenth Circuits of the U.S. Court of Appeals. The Ninth Circuit has held that the Alaska National Interest Lands Conservation Act4 (ANILCA) provides inholders with a statutory entitlement to access across federal land,5 but that ANILCA also preempts any common law property claims by inholders.6 The Tenth Circuit agrees that ANILCA provides a statutory basis for inholder access, but it maintains that 1. Marjorie D. Rombauer, Comment, Easements By Way of Necessity Across Federal Lands, 35 Wash. L. Rev. 105, 105 (1960). 2. See 3 Richard R. Powell & Patrick J. Rohan, The Law of Real Property 410, at 34-62 to 34-64 (\"When an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned by the conveyor... a right of access across the retained land of the conveyor is normally found.\"). See also infra part IV.A. 3. Rombauer, supra note 1, at 112-13. 4. Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371 (1980). 5. See infra note 36 and accompanying text. 6. See Adams v. United States, 3F.3d 1254, 1259 (9th Cir. 1993). Washington Law Review inholder access rights based on the common law are not preempted by ANILCA and may exist apart from ANILCA.7 This di.tinction is critical because the discretion of a federal agency to grant and regulate inholder access is more limited if inholder access rights are real property rather than statutory entitlements.8 The discretion of federal agencies is of paramount importance when the access claims of inholders are complicated by encounters with the Endangered Species Act9 (ESA) and the National Environmental Policy Acto (NEPA). District courts have attempted to resolve these controversies without applying the doctrine of easements by necessity.\" Yet, the failure to directly confront the issue of common law property rights in access across the public domain has spawned new legal questions that are still most appropriately answered by reference to the doctrine of easements by necessity. This Comment reviews the history of federal law and policy governing the access rights of inholders in Part I. It then critiques the Ninth Circuit's treatment of inholder access claims under current law in Part II. Part III argues that the doctrine of easements by necessity remains a valid threshold for inholder access rights. Finally, Part IV explains how federal land-management agencies and courts should regulate and adjudicate access claims of inholders with the common law doctrine of easements by necessity as a threshold for ANILCA entitlements. 7. See United States v. Jenks, 22 F.3d 1513, 1518 (10th Cir. 1994). 8. See, e.g., Shultz v. Department of Amny, 10 F.3d 649, 662 (9th Cir. 1993) (holding that the Army took property subject to easements and may not assert that easement holders cross land subject to the Army's permission); Kinscherff v. United States, 586 F.2d 159, 160 (10th Cir. 1978) (distinguishing between a private easement and a public entitlement to use a :oad). 9. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified at 16 U.S.C. §§ 1531-1543 (1989)). Plum Creek Timber Company's request for access to its \"Hemlock Point\" timber harvest in Montana was delayed for more than seven years by grizzly bear concerns. Plum Creek alone has approximately 210,000 acres of timberland inholdings requiring access across federal land. Telephone interview with James Kraft, Vice President of Corporate and Legal Affairs, Plum Creek Timber Company (Feb. 7, 1994). 10. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified at 42 U.S.C. §§ 4321-4361 (1989)). 11. See, e.g., Alpine Lakes Protection Soc'y v. U.S. Forest Serv., 838 F. Supp. 478 (W.D. Wash. 1993) (requiring more extensive NEPA review for 0.23 mile logging road easement granted to an inholder by the Forest Service); Mountain Slates Legal Found. v. Espy, 833 F. Supp. 808 (D. Idaho 1993) (holding U.S. Forest Service may reasonably restrict inholder access to protect critical habitat for chinook salmon); Sierra Club v. Lujan, No. 92-248-MA Civ. (D. Ore. 1992) (enjoining access rights because Bureau of Land Management failed to consult Fish and Wildlife Service regarding the Northern Spotted Owl). Vol. 70:307, 1995 Inholder Access Rights Under ANILCA I. THE HISTORY AND STATUS OF INHOLDER ACCESS RIGHTS Nineteenth Century land-grant policies of the United States government created a legacy of intermingled public and private land ownership where state and private inholdings are completely surrounded by federal lands. 2 Because of checkerboard-pattern land grants from Congress, railroad companies became owners of a large share of these inholdings. 3 Other inholdings were created through mining claims and various settlement acts. 4 Until about 1960, the land management agencies of the federal government routinely granted access rights across the public domain to inholders.' 5 Since then, efforts to preserve wilderness areas, protect endangered species, and conserve public resources have made the federal government more reluctant to grant access rights.16 Consequently, inholder access disputes frequently appear before the federal courts. At the core of these disputes is the question whether access rights for inholders arise from the common law doctrine of easements by necessity or from federal statutes. A. The Easement-by-Necessity Line of-Authority While there has never been a controlling decision holding that an easement by necessity may be had across federal land, several courts have dealt with the question. The easement-by-necessity argument made 12. Approximately seventeen percent of the space within National Forest boundaries and forty percent of the space within Bureau of Land Management district boundaries is private or state land. Marion Clawson, The Federal Lands Revisited 230-33 (1983). See also Leo Sheep Co. v. United States, 440 U.S. 668 (1979) (reviewing the history of land grants and sales from the public domain). 13. The railroads received a total of 131,350,534 acres from the public domain. Robert S. Henry, The Railroad Land Grant Legend in American History Texts, in The Public Lands: Studies in the History of the Public Domain 121, 122 (Vernon Carstensen ed., 1963). 14. See, e.g., Mining Act of 1866, 14 Stat. 251 (July 26, 1866); Homestead Act of 1862, 12 Stat. 392 (May 20, 1862). 15. \"The Forest Service and the Department of Agriculture have taken the position that under the Forest Management Act of 1897 they lack the authority to deny a right of way to anyone requesting it.\" Marion Clawson & Burnell Held, The Federal Lands: Their Use and Management 216 (1957). 16. See Wilderness Act of 1964, Pub. L. No. 88-577, 78 Stat. 890 (codified at 16 U.S.C. §§ 1131-1136 (1989)). See also Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified at 16 U.S.C. §§ 1531-1543 (1989)). See also Stephen P. Quarles and Thomas R. Lundquist, You Can Get There From Here: The Alaska Lands Act's Innovations in the Law ofAccess Across Federal Lands, 22 Land & Water L. Rev. 346, 349-50 (1987). Washington Law Review its federal court debut in Bydlon v. United States,7 where the Court of Claims found a taking because an easement by necessity for aircraft access had been proscribed by the United States. In Mackie v. United States,\" 8 a federal district court used an easement-by-necessity test, but found the element of necessity lacking due to the existence of alternative access. The first appellate decision acknowledging thai an easement by necessity may be had across a servient estate owned by he United States was United States v. Dunn. 9 The Ninth Circuit remanded Dunn for a factual determination of necessity, and therefore did not decide whether an easement existed. In Utah v. Andrus,\" an easement by implication and necessity was found, but it was appurtenant to state-owned school trust lands, and possibly distinguishable as a special feature of federalism.2\" Finally, in Brendale v. Olney,22 an easerment by necessity across Yakima Indian Reservation land was found by a federal district court. Brendale held that an implied easement was created when the federal government granted the patent for an allotment inholding.' The easement-by-necessity line of authority reached its zenith in the district court decision of Montana Wilderness Association v. U.S. Forest Service. 24 This controversy arose when the Burlington Northern Railroad (BNRR) sought access across a wilderness study area to harvest timber from an inholding. The district court held that BNRR had an access right alternatively founded on an easement by

Straight-Time Overtime and Salary Basis: Reform of the Fair Labor Standards Act

Abstract: The Fair Labor Standards Act (FLSA) was passed in 1938 in response to oppressive working conditions and a depressed economy. While FLSA's overtime provisions may have been responsive to the workplace of the 1930s, they are now outdated in the flexible, service-oriented economy of the 1990s and in need of revision. FLSA's salary basis test and corresponding inconsistent treatment of straight-time overtime payments are examples of excessively wooden provisions. Originally adopted to separate well-compensated white-collar employees from blue-collar line workers in need of statutory protection, the salary basis test no longer effectively serves as a gatekeeper for FLSA's overtime provisions. The DOL should promulgate regulations that allow the payment of straight-time overtime to well-paid workers and in doing so follow the lead of the Washington State Legislature. Suppose that X is the human resource manager of a successful medium-sized accounting firm. The junior members of the firm are certified public accountants who are compensated in the following manner: They are paid a salary of $750 per week ($39,000/yr) plus straight-time overtime ($18.75/hr) for any hours worked over forty. Historically, junior accountants also have been given a Christmas bonus of $1000. Due to the long hours demanded of accountants primarily during tax season, junior accountants earn approximately $55,000 per year. Recently, X has heard complaints concerning the manner in which overtime compensation is paid. Several junior accountants contend that they are covered under the Fair Labor Standards Act (FLSA or \"the Act\") and are entitled to time and a half for hours worked over forty because they are not paid on a salary basis. Based on prior experience, X knows that workers who are classified as professionals and paid on a salary basis are exempt from the provisions of FLSA. Hence, X previously has assumed that junior accountants are exempt and are not entitled to coverage. However, the junior accountants claim that because they are paid straight-time overtime, they are not paid on a salary basis and instead are hourly workers subject to the provisions of the Act. The junior accountants also bring to X's attention decisions from the Court of Appeals for the Third and Ninth Circuits which appear to support their position. Further, X knows that if their claim is successful in court, the firm would be liable for at least two years of back overtime with the possibility of a third year of liability and double damages on all three years. Estimates of bottom-line liability approach $400,000.

The Indian Child Welfare Act: Guiding the Determination of Good Cause to Depart from the Statutory Placement Preferences

Abstract: Since 1978, custody proceedings involving Indian children have been subject to the provisions of the Indian Child Welfare Act. The substantive provisions of the Act set forth placement preferences for state courts to follow when determining adoptive, preadoptive, and foster care placement of Indian children. While the Act directs that the preferences are to be followed in the absence of good cause to the contrary, it does not include a corresponding definition of what constitutes good cause. The result under this vague standard has been a lack of uniformity in state court treatment of the \"good cause\" determination. This Comment surveys the articulated policy and structure of ICWA, examines the disparities in state court applications of the \"good cause\" standard, and then proposes that the guidelines issued by the Bureau of Indian Affairs be uniformly instituted by Congress as binding regulations limiting state court discretion and guiding the \"good cause\" determination. Each individual is an amalgam of the predominant religious, linguistic, ancestral and educational influences existent in his or her surroundings. Indian people, whether residing on a reservation or not, are immersed in an environment which is in most respects antithetical to their traditions. Furthermore the cultural diversity among Indian tribes is unquestionably profound yet often not fully appreciated or adequately protected in our society. . . Preservation of Indian culture is undoubtedly threatened and thereby thwarted as the size of any tribal community dwindles. In addition to its artifacts, language and history, the members of a tribe are its culture. Absent the next generation, any culture is lost and necessarily relegated, at best, to anthropological examination and categorization. The consistent failure of state agencies to recognize the unique values of Indian2 culture, coupled with shocking statistics indicating copious and often unwarranted removal of Indian children from their families and tribal communities, led Congress to adopt the Indian Child Welfare Act of 1978 (ICWA or \"the Act\") This Comment addresses one facet of the statutory regulation of Indian child welfare-the state court I. In re M.E.M. Youth in Need of Care, 635 P.2d 1313, 1316 (Mont. 1981). 2. Because this Comment concerns the Indian Child Welfare Act of 1978, the term \"Indian\" as used by Congress in the statute, will be used in lieu of the term \"Native American.\" 3. Pub. L. No. 95-608, 92 Stat. 3069 (codified as amended at 25 U.S.C. §§ 1901-1963 (1988 & Supp. 1993)).