Tuesday, May 31, 2011
To continue our parade of fantastic guest bloggers, we are very pleased to announce that Katherine Garvey will be joining us for the month of June. Prof. Garvey is Staff Attorney and Assistant Professor at Vermont Law School's excellent Land Use Clinic. Here's her bio:
Katherine Garvey is a Staff Attorney and Assistant Professor of Law with the Land Use Clinic. From 2003 to 2006, she worked for EPA, Region VII in the National Agricultural Compliance Assistance Center and with the Office of Pollution Prevention and Toxics. Professor Garvey is also an ISO 14001 Environmental Management Systems Certified Lead Auditor. She developed and audited environmental management systems for military and large agricultural operations. From 2006 to 2008, Professor Garvey worked for the City of Lee's Summit, Missouri as the Environmental Coordinator. She helped the City comply with permitting requirements for their airport and landfill. In addition, she helped the City develop a solid waste management plan, stormwater plan, stream buffer ordinance, and a natural resource inventory map. In 2008, Garvey was chosen as Vermont Law's Land Use Fellow for the Land Use Institute. At the Institute, she supervised student work related to land use legislation, developed training materials for local officials, and performed statutory research for the Institute's land use partners.
Vermont has one of the three land use law clinics in the nation, along with Jamie Roskie's at Georgia (Montana is the third). We're excited to have Prof. Garvey join us!
As May draws to a close, I’d like to thank the Land Use Prof Blog editors for what has been an enjoyable month of guest-blogging. This month has been a devastating one for Missouri. My first blog post of the month discussed legal issues surrounding the flooding of hundreds of square miles in Southeast Missouri, and this post examines land use questions facing Joplin, Missouri, in the wake of a tornado that ravaged much of that town on May 22.
Last Saturday, I went to Joplin to assist in a massive clean-up operation that is now underway. Despite watching plenty of television footage earlier in the week, I was startled at the degree of destruction. In the city’s most severely damaged neighborhoods, entire city blocks had been reduced to mere piles of debris. Without fences or buildings to segregate their respective rights, effected landowners were ignoring property boundary lines and working together in a desperate effort to recreate some semblance of order.
As we gathered rubble and piled it along roadsides and alleyways, it occurred to me that the tornado had temporarily suspended most property and land use laws in the area. Laws of trespass, nuisance, and encroachment had been set aside. Land that deeds, easements, covenants, and zoning restrictions had once sculpted into orderly middle-class neighborhoods had briefly reverted to a sort of regulated commons.
Of course, property rights enforcement will soon re-emerge in Joplin’s tornado-stricken areas for the same sorts of reasons as those famously described by Harold Demsetz in his article, Toward a Theory of Property Rights. As order gradually returns to Joplin, the city will need a strategy for rebuilding. Hopefully, Joplin’s civic leaders will learn from the experiences of other tornado-ravaged towns. An article published in the Kansas City Star last week discusses what Joplin might glean from Greensburg, Kansas—a town that has redefined itself as a cutting-edge “green” community after encountering its own tornado. A different article published in today’s Charlotte Observer describes the successes and failures of Wheatland, Pennsylvania, and Xenia, Ohio, in land use policymaking as those cities recovered from major tornado damage in years past. According to the article, Tuscaloosa, Alabama, has already appointed a 50-person task force to generate a recovery plan following that city’s April 27 tornado. Land use planning should play an important role as both Tuscaloosa and Joplin rebuild in the years ahead.
May 31, 2011 in Community Design, Comprehensive Plans, Development, Economic Development, Local Government, Planning, Property, Property Rights, Property Theory, Redevelopment | Permalink | Comments (1) | TrackBack (0)
Tanya Marsh from Property Prof Blog asked me to spread the word about a great opportunity for anyone interested in getting involved in the ABA's Real Property section. It's the ABA-RPTE Fellows program. Prof. Marsh was a fellow a few years ago, and in her blog post she tells us about the terrific opportunities it provided her to do substantive work and to get to know other leading lawyers in the field. The application deadline is June 17. You can get to the application materials at the link or through her informative post here.
Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.
Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.
Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.
The article introduces a symposium issue entitled Eminent Domain in the United States: Public Use, Just Compensation, & “The Social Compact.” Published participants include Steven Eagle, Gideon Kanner and Amy Lavine.
May 31, 2011 in Caselaw, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Property, Property Rights, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)
Sunday, May 29, 2011
David J. Reiss (Brooklyn) has posted Foundations of Federal Housing Policy, a chapter in the book COMMUNITY, HOME, AND IDENTITY, Michael Diamond, Terry Turnipseed, eds., 2011. The abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."
Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Looks like a fascinating contribution on a very important topic.
Saturday, May 28, 2011
Today's Baltimore Sun reports on an ongoing controversy over the rights of protestors to leaflet in Baltmore's Inner Harbor. The ACLU of Maryland sued the City over First Amendment rights on the promenade surrounding the harborside shops and restaurants. Eight years later, the parties are still negotiating over permitted activities on the Inner Harbor's " hidden patchwork of quasi-private and public spaces."
The article made me wonder what Jim Rouse, creator of this and many other open-air shopping malls called festival marketplaces, would have to say were he still alive. So much of his work in developing Columbia, Md. and the Enterprise Foundation was aimed at social inclusion. Yet, free speech controversies are not necessarily resolved by such singlemindedness.
Friday, May 27, 2011
Paul A. Diller (Willamette) has posted what looks like a fascinating article, The City and the Private Right of Action, forthcoming in the Stanford Law Review, Vol. 64 (2011). The abstract:
Cities in most states enjoy broad “home rule” authority – that is, the presumptive power to pass ordinances regulating a wide range of subjects. In many of these states, however, home rule comes with a catch: cities are prevented from passing ordinances that regulate or interfere with “private law.” This article argues that the “private law exception,” as this doctrine is known, is an anachronistic relic of early twentieth century legal thought that ought to be retired outright. This article explains how a subject-based view of the “private law exception,” which prevents cities from passing ordinances affecting subjects like contracts, property, and torts, is largely unenforced today. The more relevant and potent form of the “private law exception,” by contrast, prohibits cities from enacting ordinances that create private causes of action, thereby requiring local ordinances to be enforced by public means only. As this article will show, the potential justifications for the contemporary “private law exception” – preserving uniformity and protecting the interests of the state courts – are not sufficiently compelling to outweigh the costs to local policy experimentation that the exception imposes.
Thursday, May 26, 2011
Nicholas Blomley (Simon Fraser) has posted Coloured Rabbits, Dangerous Trees, and Public Sitting: Sidewalks, Police, and the City. In it he examines policing activity on city sidewalks as a means of exploring individual rights to public space and the promotion of the common good. Here's the abstract:
Urban geographers would argue that cities are distinct spaces that need to be treated on their own terms. Yet I fear that we have not given the specificity of urban law its due. My aim is to give one crucial, yet easily overlooked urban legal practice – that of ‘police’ – more careful attention. By ‘police’ I mean ‘the regulation of the internal life of a community to promote general welfare and the condition of good order’ (Neocleous, 2000, p. 1). I focus on the sidewalk as a particular police space. I also wish to demonstrate the distinctiveness of police, particularly when compared with rights-based understandings of public space, which worry at the purification of public space. Yet the two frequently collide, as we can see with reference to a constitutional challenge to a sit/lie ordinance in Seattle. Police won, as it usually does. But to accuse police of an assault upon rights is, in several senses, beside the point, for police operates in a different register. Police thus must be understood on its own terms, and not reduced to other governmental logics.
Reed D. Benson (New Mexico) has posted Alive but Irrelevant: The Prior Appropriation Doctrine in Today’s Western Water Law, forthcoming in the Colorado Law Review. The abstract:
The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the western states’ departure from Prior Appropriation.
Wednesday, May 25, 2011
Under the title "Million-Dollar Wasteland", the Washington Post has published a series of investigative articles attacking the effectiveness of HOME, HUD's principal source of targeted funding for community-based development of affordable housing. The reporters' data analysis lead them to conclude that more than 700 affordable housing projects granted more than $400 million in HUD funds are "delayed or abandoned." In a posted response, HUD says its own review shows that most of these supposedly failed projects are "actually completed and occupied." Unsurprisingly in this fiscal climate, congressional leaders have called for an investigation into the HOME program (Post follow-up story). No doubt more to follow.
Garrett Power (Maryland) has posted the 2011 edition of Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions. Matt blogged about the 2010 edition within days of it being posted last Fall. Garrett's use of non-copyrighted case opinion and statutory materials makes for a wonderful land use teaching resource whether or not it is a course's principal casebook. Here's the abstract:
The casebook, which is electronically published in PDF format, is a part of the E-scholarship Repository of the University of Maryland School of Law. It consists of non-copyrighted material and is intended for classroom use. Professors and students are free to use it in whole or part. As the Table of Contents indicates, 170 odd cases have been grouped into 36 "sessions." Most sessions consist of four or five tightly-edited cases and the related statutes, if any. The readings are intended to be historically, economically, politically, and legally evocative; they are designed to provide an assignment appropriate for a 55 minute class discussion. The complication is approximately 1100 pages in length. It is updated annually.
Tuesday, May 24, 2011
" . . . And is it destroying our cities?" That's how this NY Times piece starts out, but it isn't an anti-HP property rights screed. It's an exhibition review of "Cronocaos," at the New Museum: An Architect's Fear that Preservation Distorts.
That’s the conclusion you may come to after seeing “Cronocaos” at the New Museum. Organized by Rem Koolhaas and Shohei Shigematsu, a partner in Mr. Koolhaas’s Office for Metropolitan Architecture, the show draws on ideas that have been floating around architectural circles for several years now — particularly the view among many academics that preservation movements around the world, working hand in hand with governments and developers, have become a force for gentrification and social displacement, driving out the poor to make room for wealthy homeowners and tourists.
Mr. Koolhaas’s vision is even more apocalyptic. A skilled provocateur, he paints a picture of an army of well-meaning but clueless preservationists who, in their zeal to protect the world’s architectural legacies, end up debasing them by creating tasteful scenery for docile consumers while airbrushing out the most difficult chapters of history. The result, he argues, is a new form of historical amnesia, one that, perversely, only further alienates us from the past.
In New York, the exhibition is in an old restaurant supply store adjacent to the museum, with a line drawn down the middle; one side has been "renovated" and the other left "raw and untouched."
The result is startling. The uneven, patched-up floors and soiled walls of the old space look vibrant and alive; the new space looks sterile, an illustration of how even the minimalist renovations favored by art galleries today, which often are promoted as ways of preserving a building’s character, can cleanse it of historical meaning.
Interesting. One other point the architect makes is that preservation can be selective in what periods and styles ought to be preserved:
This phenomenon is coupled with another disturbing trend: the selective demolition of the most socially ambitious architecture of the 1960s and ’70s — the last period when architects were able to do large-scale public work. That style has been condemned as a monstrous expression of Modernism. . . . To Mr. Koolhaas, these examples are part of a widespread campaign to stamp out an entire period in architectural history — a form of censorship that is driven by ideological as much as aesthetic concerns.
Some interesting observations here about the way that England and her former colonies govern setbacks compared to other countries:
While other countries routinely incorporate lawns into their detached single-family neighborhoods, it appears to be only England's colonial children — the United States, Canada, and to a somewhat lesser extent, Australia, New Zealand and a handful of other places — that have embraced the idea of large, decorative and open front lawns.
Whether this reflects a continuing market preference is unclear, since nearly all municipal zoning codes in the United States require large setbacks (see, e.g., Charlotte), depriving homeowners of any choice in the matter. The pattern has been replicated so relentlessly across the North American continent that alternative single-family residential designs may simply have been scrubbed from the collective imagination. Yet, if any tourist were to wander outside the historic center of any European city and into the late 20th century suburbs, an entirely different picture would emerge. Let's explore, bearing in mind that these are all post-automobile era suburbs, most dating from after 1950
Read the entire post that includes some useful pictures. Plus, follow the link to the MIchael Pollan essay. It's an "oldie but goodie" in many ways.
The John Marshall Law School will be hosting a conference on its Chicago campus on September 20, 2011, to commemorate the 40th anniversary of publication of The Quiet Revolution in Land Use Control. The book’s two original authors, Fred Bosselman and David Callies, will speak at the event, along with Daniel Mandelker, Patricia Salkin, and other prominent scholars. Here are some excerpts from a news release posted at the law school’s website:
The Kratovil Quiet Revolution Conference will begin with an analysis of the impact of The Quiet Revolution in Land Use Control, a book that discussed the shift from local to regional planning, has had on our nation and land use policy. National speakers representing the states involved in The Quiet Revolution in Land Use Control will analyze how The Quiet Revolution unfolded in these jurisdictions. The afternoon will then analyze the future of land use policy and how this national issue will play out around the country…
…This national debate started with two scholars in Chicago, so it is a fitting site for a reexamination of this 40-year-old national debate and the legislation it produced. In 1971, the president's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states around the nation which returned the control of land use to a state or regional level, largely at the expense of local zoning. This was the "ancient regime" being overthrown. This constituted the "quiet revolution." Immensely influential (several thousand copies were purchased and distributed) in stimulating creative thinking by planners, lawyers, and public officials to solve difficult land use planning issues, the book also quickly became a fixture of courses in many university planning and law programs, as well as a handbook and sourcebook for state and local officials. Dozens of articles have been written about it, some recently. It remains a reading source in many courses taught today.
Monday, May 23, 2011
In his most recently posted work, Property Law as the Infrastructure of Democracy, Joseph Singer (Harvard) confronts the libertarian notion that aggressive regulation of private property rights threatens individual freedom and democratic institutions. Here's the abstract:
It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.
This talk was the Fourth Wolf Family Lecture on the American Law of Real Property delivered April 4, 2011, at the University of Florida Fredric G. Levin College of Law and will be published in Powell on Real Property (Michael Allan Wolf ed., LexisNexis Matthew Bender).
Among the more visible, lasting land-use legacies of the foreclosure crisis is an abundance of vacant REO (Real Estate Owned) properties held by foreclosing lenders. Tom Fitzpatrick (Federal Reserve Bank of Cleveland) has posted How Modern Land Banking Can Be Used to Solve REO Acquisition Problems in REO and Vacant Properties: Strategies for Neighborhood Stabilization (Federal Reserve Banks of Boston and Cleveland). Here's the abstract:
Modern land banks hold great promise as a dynamic community development tool that can help shrinking cities and local nonprofits overcome the two biggest challenges they face when trying to acquire REO property: interest in only a small number of properties and a lack of funding for acquisition. Practice provides us with a powerful example of their successes. As regions struggle to control their inventories of vacant, abandoned, or REO properties, they would be remiss not to consider the innovative modern land banking approach that is currently being employed in states like Ohio.
Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal, published in Planning and Environmental Law, Vol. 65, No. 5, p. 3, May 2011. The abstract:
As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.
May 23, 2011 in Agriculture, Climate, Density, Eminent Domain, Environmentalism, Green Building, Local Government, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Friday, May 20, 2011
The 19th annual meeting of the Congress for the New Urbanism will be June 1-4 in Madison, Wisconsin.
Drawing on the close relationship Madison has with its agricultural neighbors, CNU 19 will build on the theme of “Growing Local.” The conference will explore linkages that urban communities have with local food production, the food economy and the infrastructure that has developed around this symbiosis.
It’s not just about growing food though. The conference will extend the “Growing Local” theme to include the nurturing of non-agricultural local economies and local connections — from Madison’s burgeoning bicycle industry and bike culture to its commitment to community involvement and participation, and pursuit of growth that reinforces a distinct sense of place. The region’s balance of vibrant urban life, rural charm, and natural beauty make Madison an ideal backdrop for CNU 19. Confirmed speakers include author and urban historian William Cronon, Trek CEO John Burke, Madison Mayor Dave Cieslewicz, Congressman Blumenauer, the six original visionaries of CNU, Seaside, FL founder Robert Davis, and many, many more.
Today I will be proud to participate in Commencement at South Texas College of Law. We're thrilled to have Houston Mayor Annise Parker as our keynote speaker. But shortly before Mayor Parker begins speaking, she will order hundreds of buildings destroyed all across the city.
No, it's not the May 21 Rapture. It's Demolition Day!
With the donated help of the Houston Contractors Association, 99 abandoned, dangerous buildings will be bulldozed as part of Mayor Annise Parker's 2nd annual Demo Day. Some of these structures are in your neighborhood. Click here to see addresses for the 99 buildings http://www.houstontx.gov/citizensnet/hcasites.pdf.
Mayor Parker and District D Houston City Council Member Wanda Adams will help kick off Demo Day Saturday, May 21, 2011 9:00 a.m.
Initiated in 2010, Demo Day is a one-day concentrated effort to rid neighborhoods of abandoned and dangerous buildings that often serve as havens for drugs, prostitution and other crimes. This year's effort will extend beyond one day to include the demolition of approximately 300 more derelict structures over the summer months. This second batch of demolitions will be carried out by City contractors once the buildings have undergone asbestos abatement. Click here to see the complete list of about 400 structures http://www.houstontx.gov/citizensnet/demoinitiative.pdf.
There has been a lot of attention given to the problem of abandoned and derelict properties from several angles recently, from the foreclosure crisis, to dying cities & neighborhoods, to crime & disorder, to blight and eminent domain. "Demolition Day" sounds like a cool movie title, but more importantly it looks like Mayor Parker has an innovative approach to the problem.
Thursday, May 19, 2011
Most land use professors are familiar with the town of Ramapo, New York, whose phased-growth program was upheld as constitutional nearly 40 years ago. Among other things, the court in the famed Ramapo case found that the town’s program was “far from being exclusionary” and sought only to “provide a balanced and cohesive community.” Interestingly, certain land use controls in one Ramapo village have proven far more vulnerable to constitutional challenge for their exclusionary effects.
Recently, the Village of Airmont (which is located within Ramapo) settled a lawsuit filed under the RLUIPA and Fair Housing Act relating to the Village’s zoning prohibition on boarding schools. The Manhattan U.S. Attorney’s office brought its claim against the Village back in 2005 after the Village denied a permit application from the Hasidic Jewish Congregation Mischknois Lavier Yakov to construct a religious boarding school in the community.
According to recent stories in the Wall Street Journal and elsewhere, the Village finally settled the lawsuit a couple of weeks ago after expending more than $450,000 in legal fees. The May 9 consent decree formalizing the settlement gives the Village until October 15, 2011, to amend its zoning code to allow construction of the religious school and to otherwise bring its code into compliance with federal laws “prohibiting discrimination and unreasonable imposition on religious freedom.”
This isn’t the first time that Airmont has effectively lost a discriminatory zoning claim. According to the New York Times, the Village previously had to amend its zoning ordinances in response to a 1991 Fair Housing Act claim contesting a zoning prohibition on the use of private homes as places of worship.
These constitutional zoning challenges in the decades following the Ramapo case offer at least some support for the theory offered by Fred Bosselman back in the 1970s (see generally 1 Fla. St. L. Rev. 234, 248-50 (1973)) that exclusionary motives were partly behind the town’s famous phased-growth scheme.
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- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs
- Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)