Sunday, November 7, 2010
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.
Tuesday, October 19, 2010
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.
Wednesday, October 13, 2010
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
Tuesday, September 28, 2010
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
Wednesday, September 15, 2010
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
Wednesday, September 1, 2010
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
Saturday, July 10, 2010
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:
Sunday, May 30, 2010
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.”
Saturday, May 22, 2010
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.
Would it make more sense to close such a little-used facility, whether on fiscal grounds or to avoid resort to federal eminent domain?
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.
Wednesday, May 12, 2010
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.
Thursday, April 29, 2010
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
Wednesday, April 21, 2010
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:
Tuesday, February 16, 2010
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!
Tuesday, February 2, 2010
Special Topic Call: Best Practices in Urban and Peri-Urban Agriculture Development.
JAFSCD welcomes research or policy briefs, and case studies (up to 2,500 words) and full articles (up to 8,500 words) on best community-development practices related to:
- Urban livestock management and regulation
- Urban market gardening and backyard gardening
- Marketing and value-adding
- Waste management and reuse
- Urban farming by immigrant or other special populations
- Farming on the fringeDeadline: June 5, 2010(The deadline may be extended with permission of the publisher.)Briefs, case studies, and articles should focus on illustrative programs or projects, survey results, literature reviews, and public policy that are related to — but not limited to — land-use planning and regulation, health ordinances or their implementation, training and educational programs, marketing systems or value chains, partnership development, systems approaches, issues of scale, and farm-neighbor relations. We are particularly interested in holistic approaches that combine community and economic development with environmental protection.More background on this topic is at www.AgDevJournal.com.