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Produced water is a problem. This brackish byproduct of oil and gas production contains salts, dissolved solids, organic compounds, and naturally occurring radioactive materials. And that is putting it nicely. Produced water is seen as a liability to oil and gas producers and is generally disposed of via reinjection or open pits. The disposal is costly and creates future environmental hazards. However, through emerging technology and minor alterations to the New Mexico Statutes, this liability can be converted to an asset for all New Mexicans. In 2009, the New Mexico Legislature bifurcated the appropriation method for produced water by the intended future use of the water. Appropriations for certain industrial and agricultural uses are allowed under a truncated appropriation process; while any other use must follow the costlier traditional appropriation method. Under the new rules, oil and gas producers need only file a form with the State to 'appropriate' the water for reinjection or disposal via certain industrial uses. However, if the producer desires to use the produced water in any non-enumerated purpose, including making the water potable, the producer must follow the costly and time consuming traditional appropriation route. By removing this bifurcation, the New Mexico Legislature would encourage producers to actively seek additional uses of what was once deemed a liability. This would reduce environmental concerns and lower overall oil and gas production costs while 'creating' more water resources in an arid state., I. INTRODUCTIONIn 2015, New Mexico oil and gas production generated almost 900 million barrels (1) of briny water that is produced along with oil and gas. This briny water is [...]

ABSTRACT This systematic review of New Mexico prior appropriation case law from 1883 to the present employs a thematic chronology in four parts spanning approximately three decades each, including the [...]

This Article tells the epic tale of the fall and rise of Mono Lake--the strange and beautiful Dead Sea of California--which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court's famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as 'the Mono Lake case.' Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India. The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Mono Lake decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board's ultimate decision to save it, the Mono Lake story is especially worth revisiting. Part II introduces the main cast of characters in the Mono Lake story, starting with the public trust and prior appropriations doctrines around which the legal controversy unfolds. Part III introduces the three places at the center of the drama--Los Angeles, the Owens Valley, and the Mono Lake Basin--in recounting the history of the Californian water struggles leading up to the Mono Lake case. Part IV discusses the Mono Lake litigation itself and its aftermath, reviewing the court's conclusion and the subsequent decision by the California Water Resources Control Board implementing the judicial directive. After analyzing the most important doctrinal innovations in the opinion, Part IV discusses subsequent critiques and new developments in public trust law. Part V concludes with parting reflections about some important questions that the Mono Lake story leaves us to ponder, including whose interests count when we talk about the 'public' trust, how they differ from aggregated private interests, and which to account for when balancing the economic, cultural, and environmental considerations in public trust conflicts. It considers the extent to which the doctrine creates substantive or procedural obligations, and the responsibilities of different legal actors and institutions in implementing them. The contested answers to these questions are what make the public trust doctrine so fascinating, so powerful, and so critical as we continue to confront the inevitable crises between competing natural resource values., I. INTRODUCTION II. THE LEGAL BACKDROP: THE PUBLIC TRUST AND PRIOR APPROPRIATIONS A. The Public Trust Doctrine 1. The Common Law Public Trust: Illinois Central 2. Constitutionalization of the Public [...]