Wednesday, March 23, 2011

Foster on Collective Action and the Urban Commons

Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.

Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.

This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.

Jim K.

March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 15, 2011

Salkin on Backyard Chickens

I must admit that whenever I see an announcement of a new article by Prof. Patricia Salkin (Albany), I make sure to do a thorough check of the blog archives because she is so prolific (putting the rest of us to shame) that I don't want to accidentally double-post.  But this one seems pretty unique, and because we are on record for posting about urban chickens, the local food movement, and agricultural urbanism, it's great to see this timely article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, published in Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011.  The abstract:

As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.

It's a really interesting concept and one that we will be hearing much more about in the near future.  I have friends in town who live next to a would-be urban chicken spot (so I hear both pro and con about it), and it's an innovative approach to modern land use, and it needs regulatory attention.   

Matt Festa

March 15, 2011 in Agriculture, DPZ, Environmentalism, Food, Houston, Local Government, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

Tax Breaks For Conservation Easements May Get Even Sweeter

As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring. 

The Rural Heritage Conservation Extension Act of 2011 would allow landowners to deduct up to 50% of the adjusted gross income for such donations (right now it is only a mere 30%).

- Jessica Owley

February 17, 2011 in Agriculture, Conservation Easements, Federal Government, Historic Preservation, Land Trust, Servitudes | Permalink | Comments (0) | TrackBack (0)

Monday, January 31, 2011

Judith Wegner, Annexation, and the Boehl Lectures

Thanks, Matt, for the wonderfully kind introduction.  I am excited to be guest-posting on the Land Use Prof blog.  Despite the flood of emails (and steady stream of students and professors wanting an associate dean's immediate attention), I read the Land Use Prof blog every day, and find the posts both helpful and thought-provoking.  It is a real honor to be a part of the great work that y'all do!

For my first post, I want to share some insights from Judith Welch Wegner's Boehl Distinguished Lecture in Land Use Policy at the University of Louisville this past Thursday, January 27, and to highlight the value of a land-use lecture series generally.  Professor Wegner is well known in legal education for her past roles as a 10-year Dean at the University of North Carolina-Chapel Hill, President of AALS, member of the Order of the Coif Executive Committee, and Senior Scholar at the Carnegie Foundation for the Advancement of Teaching.  In the land use field, she is known as the Burton Craige Professor of Law at the University of North Carolina-Chapel Hill and for her especially influential article "Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals," 65 N.C. L. Rev. 957 (1987).  I predict that she will play a major role in reviving interest in annexation as a land use legal and planning issue.

Judith gave her Boehl Distinguished Lecture in Land Use Policy on "Annexation, Urban Boundaries, and Land Use Dilemmas: Learning from the Past and Preparing for the Future."  Her basic concern is that annexation is often disconnected from land-use planning, which results in problems of sprawl, uncoordinated growth, inadequate infrastructure, and fiscal stress.  Drawing on census data and examples from North Carolina's famous "annexation wars," Judith pointed out that there are no quick-fixes, no one-size-fits-all model solutions (a point that I particularly like and have addressed most recently in "Fourth-Generation Environmental Law: Integrationist and Multimodal").  Local culture matters.  Some of the worst conflicts do not arise from expanding large cities but from small municipalities in rural or at least non-urban areas, making it difficutl to get a handle on what exactly "smart growth" might mean in these low-density communities.  Water and wastewater dynamics play significant roles, as do municipalities' desires to improve their fiscal health by increasing their property-tax base through annexations.  When municipal annexation is difficult, though, alternatives to annexation take its place, including the proliferation of special districts, the rise of county authority over land use, and the dominance of gated communities.  All in all, according to Judith, annexation conflicts demonstrate why local governance structure is a "wicked problem" but one that is critically important to land use practices and sustainable development.  I am looking forward to the publications that will result from her research.  Annexation issues have received too little attention in the land use legal literature.

But her lecture implicitly makes another point -- the value of a land-use lecture series.  More on that tomorrow . . . .  [OK, maybe not as tantalizing as who shot J.R., but hopefully something of a hook to bring you back.]  Again, thanks for letting me come aboard!

Tony Arnold

January 31, 2011 in Agriculture, Common Interest Communities, Comprehensive Plans, Density, Development, Exurbs, Lectures, Local Government, Planning, Politics, Smart Growth, Sprawl, State Government, Suburbs | Permalink | Comments (1) | TrackBack (0)

Local Milk

From time to time on this blog we've written about local agriculture, including a post I wrote about a controversy in Fall 2009 where the Georgia agriculture department seized a large shipment of raw millk from a local purveyor.

Today's Athens Banner-Herald has an article about a local farm producing small batches of low temperature pastuerized milk.  To me this is a nice compromise - locally produced milk that is pathogen free and tasty.  Unfortunately, in my experience it doesn't seem to last as long as milk that's been pastuerized at high or ultra high temperatures, so the hubby and I sometimes have difficulty finishing a half gallon (the smallest size available) before it goes bad.  (Obviously we don't drink much milk - we use it more for tea and cereal) However, it's super popular locally and it often sells out at our daily co-op.

Another interesting aspect of the article is the farmer discussing how much agriculture officials struggled to understand that his process is perfectly legal.  It seems like there's an initial reaction against milk processing that isn't being done in the predictable way, by large dairies.  I guess it's another version of small businesses being tripped up by red tape. It's great the farmer was able to get this worked out, because my guess is that local ag is a small but growing part of Georgia's very significant agricultural economy.  (And with home building at a stand still, we need all the economic growth we can get!)

Jamie Baker Roskie

 

January 31, 2011 in Agriculture, Georgia, State Government | Permalink | Comments (0) | TrackBack (0)

Friday, January 28, 2011

Yes, there are Grocery Stores in Detroit

The Urbanophile shares a story by James Griffioen called Yes, there are Grocery Stores in Detroit.  Griffioen is responding to the oft-repeated assertion that the city of Detroit--still the 11th largest city in America with over 800,000 people--does not have any major national chain grocery stores in the city.  This asserted fact is often invoked to illustrate arguments about urban decline, problematic land use arrangements, Detroit's particularly sad problems, and the current focus on the link between poverty and health and obesity in urban areas.  Griffioen says that the narrative of grocery-less Detroit is . . . a canard (he uses a more pungent term involving bovine scatology).

In the time I’ve lived in Detroit, I’ve come to realize that the most sensational claims and the public perception they create often have little to do with the day-to-day reality of being a Detroiter. This is a complicated city, and even in the most sincere efforts to cull some truth from it, visiting journalists often end up spreading damaging falsehoods.

One of the most annoying is that Detroit has no grocery stores. . . .

What surprises most people who've heard that there are no grocery stores in Detroit is that there are actually independent stores far more appealing than any chain. One of the nicest grocery stores in Detroit is Honeybee La Colmena (I wrote an extensive profile about the store here). Honeybee is owned and operated by individuals who grew up and still live in the neighborhood where the store is located and they have created dozens of jobs for their neighbors. Honeybee has some of the best produce and prepared foods in the metro area, and it is actually a Detroit supermarket where people from the suburbs come into the city to shop.

Griffioen acknowledges that there are indeed parts of Detroit that are underserved by the market, but it is important to note that cities are often much more complex than any attempt to reduce them to a generalized observation or metaphor.

Matt Festa

January 28, 2011 in Agriculture, Detroit, Food, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

Schutz on Grassland Governance and Common-Interest Communities

Anthony B. Schutz (Nebraska) has posted Grassland Governance and Common-Interest Communities, published in Sustainability Vol. 2, pp. 2320-2348, 2010.  The abstract:

In the United States, today’s ranches are engaging in small-scale nature-based endeavors to diversify their income base. But the geographic boundary of the land they own creates a relatively small area within which to operate, and fragmented ownership diminishes the ability of any single landowner to produce nature-based income. Collective action among nearby landowners can produce a set of resources from which all members of the group can profit. Such action can enhance the economic, social, and environmental sustainability of grasslands and the populations that use them. This article shows that common-interest communities can be used to provide and allocate wildlife and other resources on ranchlands, enabling individual landowners to generate more income from selling nature-based experiences to customers. Common-interest communities are familiar in urban settings but they have not yet been used in this setting. Thus, the article proposes a new approach to ranchland management based upon a familiar set of largely private legal arrangements. More broadly, the article illustrates the relevance of private law and private property to sustainable development by explaining how property owners can use private law to engage in environmentally beneficial and economically profitable enterprises on the vast privately owned landscape of the U.S. Great Plains.

Matt Festa

January 27, 2011 in Agriculture, Common Interest Communities, Environmentalism, Property, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

Price on the New Deal and the Federalization of the Mosquito

Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010).  The abstract:

Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.

The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.

From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.

The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be. 

Matt Festa

January 18, 2011 in Agriculture, Federal Government, History, Nuisance, Politics, Scholarship, State Government, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Montana v. Wyoming (and North Dakota)

Just in time for today's (my one and only) class dealing with water law . . . the U.S. Supreme Court heard oral arguments yesterday about the concept of "beneficial use" in the Western states' prior appropriation approach ("first come, first served" per Chief Justice Roberts) to water law.  The case seems to hinge on whether or not Wyoming is in violation of a compact signed by Montana, Wyoming and North Dakota if less water is being returned now to the Yellowstone River basin by Wyoming irrigation systems than was being returned in 1950, the date for the "beneficial use" benchmark.  In 2008, the Court appointed Buzz Thompson (Stanford) as special master for the matter.  Today's NY Times article suggests that the Court, which has original and exclusive jurisdiction over the matter, is skeptical of Montana's complaint.

Jim K.

kellyj@wlu.edu

January 11, 2011 in Agriculture, Caselaw, Food, Water | Permalink | Comments (0) | TrackBack (0)

When it comes to farms, size matters

In the UK, today was the last day for objections to an application for planning permission submitted by Nocton Dairies’ to build a ‘a US-style ‘mega’ dairy farm’ in rural Lincolnshire for a 3,770 cow dairy unit, dwarfing the average herd that has no more than a few hundred cows. An extraordinary 70,000+ objectors have objected to the proposed development, even though the new farm has reduced the number of cows it proposes to keep (the initial application was for 8,100) and despite impressive commitments to reduce carbon emissions in milk production.

While there are many concerns, objectors link two particularly resonant strands of opposition. The first is that a dairy farm of this size is out of place in the English countryside, the second is that keeping the cows inside, without letting them graze in the fresh air, infringes British beliefs in animal welfare. While much milk is imported into the United Kingdom from elsewhere in the EU, consumers have demonstrated a continuing desire for local dairy products and all the major supermarkets have stated that they would not sell Nocton’s milk in their stores. Campaigners and retailers alike have drawn on understandings of rurality, locality and an understanding of British (as opposed to American) farming to suggest that ‘if this proposal goes through it would not only have a disastrous effect on the well-being of the animals, but will potentially allow other factory farms in to change British farming and our countryside forever’.

As one campaign group puts it (drawing on a British love of tea), ‘Would you drink factory milk from battery cows? Not in my cuppa.’

Antonia Layard

January 11, 2011 in Agriculture, Climate, Comparative Land Use, Food, Planning, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, January 7, 2011

Teaching Property and Pre-Columbian Land Use



I’m getting ready to start teaching Johnson v. M’Intosh in Property on Monday.  I like the choice by the Dukeminier book website to look at the Iroquois three-crop agrarian culture to challenge the hunter-gatherer generalization about Native American land use; but, I think the point about the variety of Native relationships to land could be strengthened by showing just how closely some indigenous land tenure systems resembled European feudalism. 

 

My own law-school-days study of Aztec land ownership showed me a complex scheme of plot allotments to small family groups with other parcels set aside for the economic benefit of aristocratic, military and clerical castes.  Iroquois and Huron farming economies also depended on allotment to female clan members.  The historical record strongly controverts Locke’s defense of acquisition by discovery/conquest. 

 

I would love to hear about anyone bringing Pre-Columbian land use patterns into their teaching or writing.  I think it offers many possibilities for teaching on sustainability, female land tenure and the fundamental connection between how we get our food and how we relate to land.

 

Jim K.

kellyj@wlu.edu

 

January 7, 2011 in Agriculture, Comparative Land Use, Food, Property Rights, Property Theory, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, December 24, 2010

Only in Hollywood - Film School vs. Farmers' Market

In an interesting variation on "coming to the nuisance," the Los Angeles Film School has moved next door to the Hollywood Farmers' Market and is now contesting renewal of the market's permit.  Apparently, the market - which operates only on Sunday - blocks access to one of the school's parking lots.  There's a Joni Mitchell song in there somewhere.  Read about it in The New York Times.

Happy Holidays!

Jamie Baker Roskie

December 24, 2010 in Agriculture, California, Development, Parking | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 22, 2010

Swiss Billionaire Buys Montana Land

Last week my dad sent me a link to this article, about Hansjorg Wyss, a wealthy maker of medical devices, and his campaign to buy and conserve up to one million acres in the mountain west.

In an exclusive interview with The Associated Press, Wyss, 75, said he first became enamored of the Rockies as a college student who toured the region in 1958. And he defended his actions against those who chafe at the prospect of an outsider buying up land that in some cases has been logged, ranched or farmed for generations.

"Look, these are beautiful landscapes," Wyss said. "There was controversy when Yellowstone (National Park) was created and when they declared the Grand Canyon as a National Monument. But there are areas in the United States that must be protected."

As the article notes, Wyss isn't the first billionaire to buy lots of Montana land.  Ted Turner famously bought and conserved millions of Montana acres in the '90s and the '00s.  And Wyss isn't the first businessperson turned conservationist to create controversy. Consider, for example, apparel moguls Kris and Doug Tompkins (of Patagonia and Esprit fame, respectively) who bought up large swaths of Chile and Argentina in what came to be know as "The Green Land Grab." In 2003 one Newsweek writer noted:

For any developing nation, an economic crisis may not be the best time to retire open lands from commercial use. But much of the land for sale in Patagonia has been so overgrazed that ranchers describe it as pelado, or peeled, anyway. So far, Argentines have been too busy protesting international bankers to take much notice of the land rush, but that could change, warns Buenos Aires political analyst Felipe Noguera: "There is the potential for Argentines to feel that yet more of the family silver has been sold off to foreigners." Arguably, if Argentina has to sell off land, better to sell to green tycoons for public nature preserves than to other tycoons for private playgrounds. But it's not clear a financially battered populace would make such distinctions.

It's an open question whether it's a great idea for any nation, developed or developing, to permanent conserve thousands of acres of potentially productive land.  But there's no question that the Rockies, and the Andes, are landscapes that are part of our collective environmental heritage. Whether we can conserve these unique areas while allowing the local population to make a living has been an active question for many years.  Obviously the last word has yet to be written.

Jamie Baker Roskie

December 22, 2010 in Agriculture, Comparative Land Use, Environmentalism, Property | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 30, 2010

Kratzke on Russia's New Land Code

William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12.  The abstract:

On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.

Matt Festa

November 30, 2010 in Agriculture, Comparative Land Use, Eminent Domain, Environmental Law, Historic Preservation, History, Property, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, November 26, 2010

Benson on Environmental Review of Western Water Project Operations

Reed D. Benson (New Mexico) has posted Environmental Review of Western Water Project Operations: Where NEPA has not Applied, Will it now Protect Farmers from Fish?, forthcoming in UCLA Journal of Environmental Law & Policy, Vol. 29, No. 2, 2011.  The abstract:

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger’s recent decisions applying NEPA to the Bureau’s efforts to comply with the Endangered Species Act in operating the Central Valley Project. The article concludes that the Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species.

Matt Festa

November 26, 2010 in Agriculture, Caselaw, Environmental Law, Federal Government, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, November 25, 2010

Thanksgiving 2010

Happy Thanksgiving, everyone.  If you care for some holdiay-related land use thoughts, we had some previous posts on Plymouth, MA (site of the Pilgrims' first Thanksgiving*) possibly becoming the Hollywood of the East; Will Cook on The Pilgrims and Land Use; and an assertion that Thanksgiving is a land use holiday.  

* I know better than to wade into the controversies over which place had the true first Thanksgiving--Plymouth (1621); Berkeley Hundred in Virginia (1619); or even St. Augustine, Florida (1565).  Regardless of who was first, thanksgiving feasts since the beginning have been celebrations of the relationship between the community and the land.  Enjoy your holdiay!

Matt Festa

November 25, 2010 in Agriculture, History | Permalink | Comments (0) | TrackBack (0)

Saturday, November 20, 2010

Head on Grasslands at Risk

John W. Head (Kansas) has posted International Legal Regimes to Balance the Protection of Prairies and Grasslands with Their Agricultural Use Part One – Grasslands at Risk, a working paper for the Center for International Trade and Agriculture (CITA).  The abstract:

Grasslands abound on Earth, but humans have damaged them profoundly. This paper – part of a book project focusing on the international legal regimes needed to strike an appropriate balance between the protection of grassland areas and their use for agricultural production – identifies where grasslands are located, what makes them distinct parts of our natural order, how they have been degraded, and why that matters.

Some points that are fundamental to this discussion include these: (1) grassland ecoregions exist both in tropical and in temperate zones of the Earth, and while there are important differences both between and within each of these two categories of grasslands, their similarities warrant looking at the two together; (2) grasslands are dramatically more complex and full of life than most people realize, and indeed the subtlety of their richness probably contributes to their abuse; (3) that abuse takes many forms and springs from many causes, including urban encroachment, forest encroachment (especially through fire suppression), habitat fragmentation, agricultural conversion, inappropriate grazing practices, water mismanagement, and recreational frivolity; and (4) human abuse of the world’s grasslands incurs a huge economic and financial cost to this and future generations, in part because it squanders the benefits that grasslands can provide by way of protecting water quality, buffering drastic natural phenomena (such as storms and floods), conserving soil resources, facilitating prudent recreation, maintaining critical habitat for wildlife, protecting biodiversity more generally, and contributing to the global food supply through sustainable use in agricultural and livestock operations.

The condition and use of grasslands around the world have a direct bearing on agricultural production and on the international trade in agricultural commodities that is essential for the Earth’s future. Hence this paper offers a factual foundation for legal and policy discussions; one or more later papers by the same author will contribute further to those discussions.

Matt Festa

November 20, 2010 in Agriculture, Comparative Land Use, Environmental Law, Environmentalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 7, 2010

Fanizzo on Separation of Powers, Federal Land Management, and the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, from Environmental Law, Vol. 40, No. 3, 2010 .  The abstract:

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half million acre national monument in southeastern Arizona and ordered the Bureau of Land Management to study whether cattle grazing would harm the significant historic and scientific sites he intended to protect. The Bureau allowed grazing to continue without doing the study. A non-profit conservation group, the Western Watersheds Project, sued the Bureau to implement Clinton’s orders. The group asked the court to exercise its authority under the Administrative Procedure Act to compel agency action unlawfully withheld and set aside arbitrary, capricious, and unlawful agency action. The Bureau responded that judicial review was not available to enforce its compliance. This article argues that courts should enforce the terms of such presidential proclamations when third parties sue the non-compliant agency. The intent of Congress in delegating to the President the ability to act quickly and reserve public lands for certain uses and not others and the broad deference given by the courts to the exercise of presidential discretion at the time of the designation support the application of this judicial review. Set against the backdrop of preserving our national cultural heritage, this case highlights the respective, and at times, overlapping roles of the executive, legislative, and judicial branch in federal land management.

Matt Festa

November 7, 2010 in Agriculture, Federal Government, Historic Preservation, History, Judicial Review, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Owley Lippman & Levy on Preservation as Mitigation under CEQA

Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005.  The abstract:

Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects. 

This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.

There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.

Matt Festa

October 19, 2010 in Agriculture, Conservation Easements, Environmental Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 13, 2010

Shirley Sherrod Gives First Speech Since Controversy

As I mentioned in a previous post, former head of Georgia Rural Development for the USDA Shirley Sherrod spoke Saturday night in Gainesville, Georgia.  The occasion was a banquet celebrating the 60th Annivesary of the Newtown Florist Club, a Land Use Clinic client.  There was a good turn-out for Sherrod's first speech since her ouster and the attempted re-hire by the Secretary of Agriculture.  (Read the latest press re: the government e-mails about the controversy, recently obtained through a FOIA request.)

Sherrod's speech was deeply personal.  She described the unpunished murder of her father by a white farmer in the 1960s, and how that event made her devote her life to changing things in the South.  Her feelings about her father's murder, and the extensive discrimination suffered by black farmers in Southeast Georgia, at first lead her to hesitate in helping a white farmer (when she was running a non-profit agency, before her time at USDA).  In telling the story of how she overcame that hesitation to help the white farmer, she became open to the accusations of racism that lead to her ouster, even though she was trying to make the point that, for her, rural development is not about race but about poverty.

Sherrod says she shared that story about the farmer back in July to show others that if she could overcome her own personal demons, then so could others. The story was meant to be used as an example and encouragement for others to come together.

"We can't just work in isolated groups, (all races) need to work together to make the changes in the world that we need to make," Sherrod said.

"It's not about black people by themselves and it's not about white people by themselves. Let's all come together as a community."

I came away with the impression that she plans to write a book about her life, and she vowed at the end of her speech to continue to speak out about racism.  It will be remarkable to see where she goes next, in her already remarkable life.

Jamie Baker Roskie

October 13, 2010 in Agriculture, Environmental Justice, Race | Permalink | Comments (0) | TrackBack (0)