Land Use Prof Blog

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

 

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

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

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

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

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

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

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

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

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

Planning the Future of Your Farm

Last Thursday I attended a workshop on "Farm and Estate Transition and Conservation Easements,"sponsored by the Madison-Morgan Conservancy at the Burge Plantation outside Madison, Georgia. The audience was a mix of landowners and lawyers interested in helping farm owners conserve their land and pass their farms onto future generations.  This is a very interesting twist on estate planning, and I learned the value of having a qualified lawyer as an adviser on farmland transition.  For example, according to Allen H. Olsen, a agriculture law specialist, traditional estate planning can sometimes create governance structures that make the farmer ineligible for farm subsidy programs, thus undermining the farm's ability to survive.

The Rolling Hills Resource Conservation and Development Council has published "Planning the Future of Your Farm: A Workbook Supporting Farm Transfer Decisions."  I've only had a chance to scan through the Table of Contents, but the book seems to be chock full of tools for planning family meetings, evaluating farm resources, and drafting farm transfer tools.  It looks like a great resource for anyone working with farmers interested in effectively planning for the future.

Jamie Baker Roskie

Shirley Sherrod to Speak at EJ Conference in Gainesville, Ga

By now probably most of you have heard the story of Shirley Sherrod, most recently of the USDA, forced to resign after a highly edited version of an old speech she gave to the NAACP made it seem as if she is unsympathetic to white farmers. (In fact, she was making the opposite point in her speech.)  While the agency has since offered to rehire her, she has decided to move on. (Bill O'Reilly even apologized to her for showing the edited clip on his show.)

She will be speaking October 9th in Gainesville, Georgia at a conference on environmental justice sponsored by the Newtown Florist Club. As I've blogged before, NFC is a client of our clinic and one of the oldest and most effective community organizations in Georgia.  The conference coincides with the Club's 60th anniversary, and I will also be speaking on a panel on October 8th regarding how EJ communities can work with lawyers.  Should be pretty interesting!  If you or someone you know might be interested in attending the conference, contact NFC.

Jamie Baker Roskie

Georgia Farms "Crop Mobbed"

From Christine McCauley, Executive Director of the Madison-Morgan Conservancy in Madison, Georgia:

What is a crop mob?  Well, we found out yesterday that it’s a group of self-proclaimed “landless farmer wannabes” who help local farmers farm – from planting to harvesting to building greenhouses, and everything in between.  They get their farming “fix” so to speak by helping other farmers, since they can’t farm for themselves.  

Yesterday, the Crop Mob came from Atlanta to Tate Tewksbury’s farm to help build two hoop houses (greenhouse-like structures used for growing crops).  To celebrate a fruitful morning of hard work, Mark Tewksbury (Tate’s father) was kind enough to host the Crop Mob at his farm just up the road.  Plow Point Farms (Walton County) brought freshly processed chicken for lunch and Suzie Cooker Catering complemented the chicken with delicious fresh butterbeans and pimento cheese sandwiches.  We were thrilled to be joined by our favorite local band, The Barefoot Hookers for a little music and dancing by the barn.  Mark Tewksbury led the kids (and CNN) in milking the cows, petting the horses, and showing us the rest of the farm.  All in all a really fun, productive, educational day, and one that has helped Tate prepare for the next growing season.

Two weekends ago Burge Organics was Crop Mobbed, too - there the Crop Mob helped farm manager Cory Musser harvest hundreds of pounds of squash and other veges.  Check out Crop Mob Atlanta.

"A University of Georgia study says Georgia's economy could be boosted if more people bought more food locally.  The study, conducted by the May Center for Agribusiness and Economic Development, reports that if every Georgia household spent an additional $10 on locally-grown food, another $1.9 billion would be pumped into the state's coffers.  Agriculture in Georgia is a $11.6 billion industry with a $58 billion total economic impact, according to the study.” reprinted from the Associated Press.

I've heard of the slightly-less-hiply named "Farmer for a Day." It's all part of a movement to help us city dwellers get closer to, and learn more about, the source of our food.

Jamie Baker Roskie

Salkin & Kansler on Medical Marijuana Meets Land Use

Patricia E. Salkin (Albany) wrote to let us know that she and Zachary Kansler (Albany) have posted Medical Marijuana Meets Land Use: Can You Grow, Smoke, and Sell that Here?  The abstract:

Fourteen states currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of land use regulatory questions including: whether state law preempts local zoning when it comes to growing, buying and using marijuana for medicinal purposes; whether distance requirements, similar to those used in the regulation of adult business uses, can be utilized to regulate the use of medical marijuana; and, what types of special use permit considerations may be appropriate for considering activities related to the use of medical marijuana. In addition, questions as to whether growing and sale of the drug may constitute a valid home occupation, and whether marijuana is or should be considered an agricultural crop, and if so, what impact this would have on the relationship between agricultural regulation/policy and zoning, suggest a growing number of legal unanswered land use law related questions in this emerging area. This article pulls together information about how the municipalities in the fourteen states with legalized medical marijuana are beginning to sort through and address the challenging land use issues that confront communities faced with the growing, sale and use of the drug.

Interesting and timely, and more support for my theory that every important issue ultimately has a land use angle.

Matt Festa

Guerilla Gardeners

We have posted several times on the movement towards urban agriculture (and chickens) and neighborhood gardening.  But sometimes The Man (and zoning and other land use codes) won't allow it. From the Wisconsin State Journal, Guerilla Gardeners: They leave a garden when no one else is looking.

True “guerrilla gardening” — planting in a public place, where one doesn’t have permission — is difficult to confirm and by nature is secret. It’s also illegal, although the city prefers to educate residents rather than enforce a $500 fine for violating tree planting rules, said George Hank, the city’s director of building inspection.
Guerrilla gardeners have their own code of conduct, said John, the East Side guerrilla gardener who the State Journal is not identifying because he also is a volunteer gardener with the city and does not want to lose that position.
“My thought is always that people not mess with other people’s gardens,” John said. “There are so many places that need attention around this city.”

Matt Festa

Federal Eminent Domain on the Border?

In another example confirming my belief that every legal and policy issue ultimately has land use implications, here's an article that touches on border control, the federal stimulus package, agriculture, and eminent domain.  From the northern border: Vermont farmer draws a line at US bid to bolster border: Homeland Security threatens to seize 4.9 acres.

FRANKLIN, Vt. — The red brick house sits unassumingly on a sleepy back road where the lush farmlands of northern Vermont roll quietly into Canada. This is the Morses Line border crossing, a point of entry into the United States where more than three cars an hour constitute heavy traffic.

The bucolic setting of silos and sugar maples has become the focus of a bitter dispute that pits one of America’s most revered traditions — the family-owned farm — against the post-9/11 reality of terror attacks on US soil.

The Department of Homeland Security sees Morses Line as a weak link in the nation’s borders, attractive to terrorists trying to smuggle in lethal materials. The government is planning an estimated $8 million renovation here as part of a nationwide effort to secure border crossings.

It intends to acquire 4.9 acres of border land on a dairy farm owned for three generations by the Rainville family. Last month, the Rainvilles learned that if they refuse to sell the land for $39,500, the government intends to seize it by eminent domain.

The Rainvilles call this an unjustified land-grab by federal bullies.

Would it make more sense to close such a little-used facility, whether on fiscal grounds or to avoid resort to federal eminent domain?  

Matt Festa

Schneider on Agricultural Law: Food, Farming, and Sustainability

Susan A. Schneider (Arkansas) has posted A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability, forthcoming in the William and Mary Environmental Law & Policy Review, Vol. 34, p. 95 (2010).  The abstract:

American agricultural policy has evolved from its early focus on agricultural development and expansion to its current emphasis on providing economic support for the agricultural sector. Agricultural law as a discipline has tracked this policy, with agricultural law scholars debating the origins and the validity of the special treatment of agriculture under the law. This article reviews these debates and calls for a reconsideration of agricultural law and policy. It argues for agricultural policies that consider the production of safe and healthy food as the primary goal. Agricultural law in this context can address the unique aspects of agricultural production, the fragility of the environment, and sustainability concerns, all in the context of a systemic food policy. Transforming the special law of agriculture to focus on the sustainable production of healthy food is a critical challenge for the future.

Matt Festa

Furloughs, Budget Cuts, and Rural Georgia

Tomorrow is a furlough day for the University System in Georgia, which means I'm forbidden to work. Only faculty and staff who provide "essential services" are allowed to report on furlough days and, ironically enough, instruction is not considered an essential service.

These are lean budgetary times and we're all expected to share the burden.  I have no problem with that.  However, it's hard not to be concerned about what lies ahead. The legislature is in its final day and hopefully at the end of it we'll have a state budget for FY 2011.

"What does that have to do with land use," you might ask?  That depends on how much of a cut the University system takes in the final budget.  Last month the legislature asked the Chancellor to submit a budget that included $300 million in additional cuts, over the budget cuts they have already made and were making for 2011.  The Chancellor's proposal would eliminate the 4-H program and cut the number of county extension agents in half.  In a state where agriculture is a dominant economic force, those cuts are extremely significant.  (UGA's Public Service and Outreach branch would also suffer layoffs of up to 47% of faculty and staff.)

It doesn't look as if such extreme cuts will come, but the cut will probably be about $150 million, which is still pretty significant.  In state like Georgia, rural communities depend on UGA to fulfill its land grant mission of service.  Extension agents are vital sources of knowledge on land use practices, soil and water conservation, and a host of other subjects. As federal stimulus dollars dry up, it becomes increasingly difficult for the University to fulfill those functions.  We'll see what lies ahead.

Jamie Baker Roskie

Pils on Property, Dignity, and Growth in Urbanizing China

Here's another paper posted by Eva Pils (Chinese University of Hong Kong): Waste No Land: Property, Dignity, and Growth in Urbanizing China.  The abstract:

The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that certain economic theories of property rights are consistent with discrimination and should therefore be rejected. A further conclusion is that we must reconsider the claim that property rights are desirable because they serve economic growth. The discussion here contributes to an understanding of property in terms of dignity, rather than wealth.

Matt Festa

Nothing says "Be Mine" quite like . . . manure

On the 14th I was disappointed that I couldn't think of any holiday-themed items to blog about for Valentine's Day.  But a Minnesota farmer has come to my rescue with seven loads of manure.  From KIMT.com, Local Farmer Makes Manure Valentine:

Bruce Andersland raises cattle and farms near Albert Lea Minnesota, and this Valentine's Day, he's saying "I Love You" to his wife Beth of nearly forty years, in a unique way. . . .

He used his machinery to draw this arrow pirced heart on their farm land, with manure. . . .

After seven loads of fertilizer he let his wife beth in on his big Valentine's wish.

Beth said, "I've had flowers, jewelery, and chocolate, this was something from the heart and imagination and he's very creative and very thoughtful so this was something special."

Bruce said he thought up the idea one day when he noticed just how well the dark manure showed up on the white snow. . . .

It's about a half a mile wide and in order to see the whole thing you need a plane.

So, they hired a pilot to take aerial shots of the Bruce's creation.

Click the link above for an aerial photo of the giant manure heart.  The fun isn't over yet, either:

Bruce said, "now next year we're gonna see if the corn grows a little better in the shape of a heart."

Thanks to John McKinney for the pointer.  Now if only someone would send me a good land use story for Mardi Gras or Ash Wednesday!

Matt Festa