Tuesday, July 24, 2012
Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer.
I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research. Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism.
Congrats to both, and way to represent those of us in the property and land use junior ranks!
Monday, July 23, 2012
Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues. By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing." The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law. The DOJ intervened and negotiated a settlement on behalf of HUD. The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing. The County also must affirmatively market the housing in surrounding areas with significant non-white populations. The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process).
The County argues that it is complying with the settlement and is ahead of schedule in constructing the units. However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns. The County has responded that the cost and availability of land restrict the options available. The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement. In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.
The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice. HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary. The County's AI concluded that no exclusionary housing existed in its municipalities. Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach.
The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan." It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary. Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement.
HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.
Tuesday, June 26, 2012
No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour. Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues. From Obamacare and Federalism's Tug of War Within:
In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions. And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal. For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.
. . . .
In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.
Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision. Professor Ryan has a new book on the subject called Federalism and the Tug of War Within.
And, so yes, there is a land use angle to the Obamacare decisions. But you already know that there's a land use angle to everything.
Thursday, May 31, 2012
Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law. The abstract:
Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.
After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.
Monday, May 28, 2012
Today was Memorial Day in the US. There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation. There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries). It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues. [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.] Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.
For this post, though, I'll go back to the origins of the holiday. Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century). In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory. In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:
The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.
Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues. And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:
Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.
Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory. And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement. This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history. As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:
The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.
Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS. The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States." [What a long way from Kelo that was!] Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):
Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.
The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.
So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways. I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.
May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Saturday, May 26, 2012
My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012). The abstract:
For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.
This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.
The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits.
You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services. And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case.
Thursday, May 24, 2012
John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll. The abstract:
Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”
This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.
This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux. The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Sunday, May 20, 2012
Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467. The abstract:
Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.
This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.
Monday, May 7, 2012
Michael C. Blumm (Lewis & Clark) and Tim Wigington have posted The Oregon and California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict, forthcoming at 40 Boston College Environmental Affairs Law Review No. 1 (2013). The abstract:
This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the George W. Bush Administration’s unsuccessful attempts to change the compromise reached in the NWFP. The article then explains how decreases in timber harvesting and declines in federal payments have brought the counties reliant on these lands to the brink of bankruptcy, and analyzes two current legislative proposals aimed at increasing harvests on the O&C lands in order to bolster flagging county economies. The article concludes by identifying significant economic and environmental flaws in these proposals and suggests several alternative revenue-producing options that could provide economic security and diversity to the counties without eviscerating the key environmental protections provided by the NWFP and other federal environmental protection statutes.
The article looks like a fascinating interdisciplinary blend of law, policy, and history.
Tuesday, May 1, 2012
It's May 1, 2012, and that means a few different things around the world. Regular readers know that we like to do the occasional holiday-themed post on related land use issues, but this one needs to be disaggregated!
The original May Day celebrations were pagan rituals throughout Europe, particularly in Celtic, Germanic, and other Northern European societies. These tended to focus on the traditional spring/early summer themes of rebirth and fecundity, with venerations of the deities of earth and flowers and so on. As Christianity spread, the Church tended to co-opt these pagan celebrations, which continued the tradition of Maypoles and public festivities. This tradition obviously relates to land use in its focus on the renewal of the earth and its bounty going into the new summer.
Then in the late nineteenth and early twentieth centuries, May Day became a nearly universal labor holiday known as International Workers Day, as well as a day that became associated with socialism and communism. Because the American Labor Day is not until September, I always assumed that this must have some European or Soviet origin. But my exhaustive Wikipedia-based research for this post led me to realize that May 1 as International Workers Day originated right here in the U.S. of A., thanks to the 1886 Haymarket Riots in Chicago, where police fired shots into the crowd at a worker's strike after a bomb exploded. This galvanized the interational labor movement, which led the Second International to declare May 1 as International Workers Day in 1889. In fact, the reason the American Labor Day is set in September seems to have been a desire to disassociate it with the Haymarket anniversary. Any time we're talking about riots, strikes, public demonstrations, or urban politics, there is always a host of land use issues involved.
The theme of May 1 as an international labor day has led some of the Occupy Movement to plan to Occupy May 1 to urge a general strike and as a chance to relaunch their protest movement in cities around the world. The Occupy Movement deserves some further study for the interesting land use issues it presents, both in terms of its attempts to, well, "occupy" public and private spaces in cities, and also for its organization of those spaces-- I have heard from more than one observer that in some of the Occupy encampments they have instituted an informal sort of zoning apparatus. At this hour it seems that the Occupy May Day affairs have been generally peaceful.
Another prominent commemoration of May 1 in the U.S. comes with Law Day. While not widely known outside the legal profession, bar associations across the land have programs to celebrate and educate members on the importance of law (e.g., today I went to the local bar's Law Day banquet to recognize a major award earned by one of my students). Land use law being a field of growing importance in the profession, it goes without saying that any commemoration of law generally should include a nod to those who practice land use law in our communities. I had thought that Law Day was mostly an inside-baseball event for lawyers and bar organizations, but again (thanks to Wikipedia) I just learned that the origin of Law Day was really an anti-communist maneuver. In response to the growing importance of May 1 in the communist and particularly the Soviet sphere (think back to parades of tanks and nuclear missiles down the central square), President Eisenhower declared the first Law Day as a celebration of the rule of law and its critical importance to democracy and civilization. The commemoration of Law Day is codified at 36 U.S.C. 113.
So whether you celebrate May 1 for it's pagan/Christian celebration of earthly renewal; it's relevance to the international labor movement and urban politics; or for it's commemoration of the importance of the rule of law in society, May Day has an important relationship with land use. The last use of the term "Mayday," as a distress signal, comes not from the first day of this month, but rather from the French venez m'aider (come help me). The only academic connection I can think of from that usage, however, is that it is perhaps being muttered right now by the students who are taking my exam tomorrow.
Monday, April 30, 2012
Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review. The abstract:
In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.
This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.
Wednesday, April 25, 2012
As a person whose academic focus is on the regulation of private lands, I suffer from something of an existential dilemma. I grew up in Idaho, now live and teach in Idaho, and understand myself as a westerner. But to the extent that the western United States possesses any unique, defining characteristic that might distinguish it – or its people – from other regions of the country, it must be the public lands. I believe that the land shapes us as individuals as much as we shape the land. And so as westerners, we are shaped by the National Forests, National Parks, and BLM lands that make up the public lands more so than any other lands.
But is that still the case? Are westerners still defined – if we ever were – based on our placement in a public-lands landscape?
A few years ago I noticed, quite after the fact, that the Targhee National Forest had substantially revised its travel plan, reducing historic access to roads and trails. And it appeared that no one had complained. But just a decade earlier when the Targhee started closing old roads to protect Grizzly habitat, Teton County banned federal vehicles from its roads, Helen Chenoweth showed up with her posse to hold Congressional hearings, and a bomb showed up at the front door of the local Forest office. More recently, while using land ownership maps to place private land-use regulation in our public lands context, one of my students asked what all of the green on the map represented. Those are the National Forests, I said. Oh, he said, so what is the yellow? That’s the Bureau of Land Management.
He grew up in Idaho, where 22% of all land is managed by the BLM, and 62% in total managed by the federal government. He did not seem aware of that fact.
People define themselves through conflict, at least in the decision that there is something worth fighting about. So by investigating those conflicts we are investigating emerging cultural values. In considering contemporary western conflicts, we should ask whether the nature of those conflicts suggests that “western values” might have changed.
From a simple cartographic perspective, the West remains distinguishable from the rest of the country based on the substantial amounts of federal lands found there. But it is possible that the era has ended in which the West defines itself primarily – culturally, socially, and cartographically – by the presence of those public lands. Obviously, we can and should still care about those public spaces, but the West is now much more similar to the rest of the country, where the primary land-related concern for most residents is the use and regulation of their homes and towns. Comprehensive plans make the front page; forest plans do not. New subdivisions matter more than new timber harvests. And whether my street is plowed regularly is more significant than whether I can still drive on that old logging road. Local cultures and economies, and social conflicts, in this post-public-lands West originate in the same private lands uses and disputes that arise anywhere in the United States, and increasingly, anywhere in the world. The primary landscape in which western human-land relationships are realized is now more likely to be a private landscape than a public one—development, change, and conflict in the West’s private lands now describe, define, and determine the West’s personality more than the public lands that are increasingly foreign to the region’s residents.
So why does this matter? Wallace Stegner claimed that the West is the native home of hope, and that its true potential lies in finally creating a society to match the scenery. You can’t be a westerner without believing the first part. And perhaps you can’t be a westerner without disbelieving the second. That’s why a recognizing a post-public-lands West matters. Because we have to get past that disbelief, and it’s on our private lands where our homes, towns, relationships, and societies are built.
-- Jerry Long
Friday, April 6, 2012
In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit. Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front. From the post:
For Takings Clause enthusiasts, the past week has proven a busy one. Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.
Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S. Exciting times in the takings world. Read Tim's whole post for a good analysis.
April 6, 2012 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Federal Government, Property Rights, State Government, Supreme Court, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Monday, February 20, 2012
From a recent HUD press release:
HUD SECRETARY DONOVAN ANNOUNCES NEW REGULATIONS TO ENSURE EQUAL ACCESS
TO HOUSING FOR ALL AMERICANS REGARDLESS OF SEXUAL ORIENTATION OR GENDER IDENTITY
New regulations, published as final in the Federal Register next week, will go into effect in 30 days
WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun Donovan announced today new regulations intended to ensure that HUD's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity. Donovan previewed the announcement at the 24th National Conference on Lesbian, Gay, Bisexual and Transgender (LGBT) Equality – Creating Change. View the final rule here.
“The Obama Administration has viewed the fight for equality on behalf of the LGBT community as a priority and I’m proud that HUD has been a leader in that fight,” said Secretary Shaun Donovan. “With this historic rule, the Administration is saying you cannot use taxpayer dollars to prevent Americans from choosing where they want live on the basis sexual orientation or gender identity – ensuring that HUD’s housing programs are open, not to some, not to most, but to all.”
The new regulations, published as final in the Federal Register next week, will go into effect 30 days after the rule is published.
Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:
In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.
Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:
[Insert sound of crickets chirping, grass growing, and paint drying].
Somin cites an op-ed by Christina Walsh of the Institute of Justice:
A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.
Thursday, February 2, 2012
President Obama gave a speech yesterday in Falls Church, VA, explaining his State of the Union thoughts on housing. From the White House transcript:
As I indicated at the State of the Union last week, I am sending Congress a plan that will give every responsible homeowner in America the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. (Applause.) No more red tape. No more runaround from the banks. And a small fee on the largest financial institutions will make sure it doesn’t add to our deficit.
I want to be clear: This plan, like the other actions we’ve taken, will not help the neighbors down the street who bought a house they couldn’t afford, and then walked away and left a foreclosed home behind. It’s not designed for those who’ve acted irresponsibly, but it can help those who’ve acted responsibly. It’s not going to help those who bought multiple homes just to speculate and flip the house and make a quick buck, but it can help those who’ve acted responsibly.
What this plan will do is help millions of responsible homeowners who make their payments on time but find themselves trapped under falling home values or wrapped up in red tape.
Monday, January 9, 2012
Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012. The abstract:
This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.
Friday, January 6, 2012
Via Jessica Owley, news of an interesting upcoming conference at Buffalo:
Save The Date and Call for Papers
Wetlands Policy for the Next Generation
26-27 April 2012 at SUNY Buffalo Law School
Buffalo, New York
Beyond Jurisdiction: Wetlands Policy for the Next Generation will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). As is true of many areas of law and social policy, the world of wetlands is inherently political and value-laden—the law is often be a poor means of accomplishing contested social objectives in this area. A debate sparked by U.S. Supreme Court decisions and related federal actions have focused wetlands scholarship and advocacy during the past decade on exploring the parameters of which “waters of the United States” fall under federal jurisdictional. Such concentration has detracted from scholarship and study of many other important issues related to wetlands policy, such as mitigation, the Tulloch rule, nationwide permits, local and state policy developments, international treaty obligations, and other matters. This conference is designed to broaden the focus of exploration and include voices of scholars, activists, scientists, media professionals, and others.
We welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including:
· Tulloch/discharge issues
· Ecosystem services
· State and local governance
· Permit processes (including nationwide and regional permits)
· Administration of the Clean Water Act
· International and transnational protections
Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words by Monday, 13 February 2012 to http://baldycenter.info/cgi-bin/applications/rfp.cgi <http://baldycenter.info/cgi-bin/applications/rfp.cgi> .
For more information, contact Kim Diana Connolly at email@example.com or 716-645-2092
Friday, December 30, 2011
Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012). Here's the Amazon blurb:
Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.
And for a preview, Prof. Wolf has posted the introduction on SSRN. The abstract:
This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.
What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.
Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.
December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 20, 2011
Nestor M. Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property, Fordham Law Review, Vol. 80 (2011). The abstract:
This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.
Absolutely fascinating-- an original insight that makes an important contribution to our understanding of early republic property theory and its implications for property law today.