Wednesday, March 11, 2015

Two job openings at San Francisco Planning Department

For the planners out there, several great and rare opportunities...

The San Francisco Planning Department is pleased to announce exciting employment opportunities for the positions of Planner II and Planner III for the City and County of San Francisco. This is an opportunity to work in a dynamic, inter-disciplinary, and innovative department and share in our vision to make San Francisco the world’s most livable urban place – environmentally, economically, socially and culturally.  We work in a collaborative, team-oriented environment with opportunities to work on a wide variety of projects and topic areas, both individually and on project teams.  In performing our planning work, we work closely with staff of other City and regional agencies, the development community, and the general public.  Community outreach and engagement is a big part of our work, and we hold frequent public forums to present and get input on our work.

The links to the job announcements and application process are listed below.  The filing deadline for both positions is March 17, 2015. 

5278 Planner II:

5291 Planner III:

March 11, 2015 | Permalink | Comments (0)

Water Down Under: A Report from Australia by Barbara Cosens: Post 6: The Goyder Line

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts hereherehere, here, and here.]

This weekend we drove for the first time across the “Goyder Line” into Australia’s famous outback. George Goyder was the Surveyor-General of South Australia from 1861-1893. In 1864, Goyder drew the line that bears his name to mark the northern extent of potential for development of agriculture in Southern Australia.   


Goyder Line 

Like the 100th Meridian in the United States which marks the line dividing the eastern United States, in which agriculture is possible without irrigation, from the western United States where irrigation is necessary (until the coast or isolated pockets like Idaho and Washington’s Palouse). 

100th Meridian 

The Goyder Line is also defined by climate – south of it the precipitation can support agriculture, north of the Line it cannot.  In contrast to the north-south 100th Meridian, the Goyder Line is east-west highlighting the influence of the Southern Ocean as opposed to the Atlantic and Pacific.  Also in contrast to the 100th Meridian, the Goyder Line is absolute, marking the area of agriculture and no agriculture. 

As you drive north from Adelaide you leave the now famous wine regions and areas of fruit, nuts and vegetables and enter the northern wheat fields.  Then all of a sudden, it ends.  Scrub hills and red gum, dry drainages and large sheep stations run by pastoralists (what we would refer to as ranchers).  The land is used for grazing.  Red banded mountains like the Flinders Range rise from the valleys.  Kangaroos and emus bed down under the gum trees to escape midday heat.  The simple difference from the western United States is that there is no water source adequate for large scale irrigation in Australia’s outback.  No Missouri, Colorado, Snake, or San Joaquin.  Attempts to defy the Goyder Line, including the planting of wheat in Wilpena Pound in the Flinders Range during a series of wet years in the 1800’s, failed when drought returned. 

Pastoralists in this part of the outback rely on the massive aquifers of the Great Artesian Basin (GAB) to water stock.  Like the Olgallala aquifer, the GAB receives limited recharge.  Unlike the Olgallala, the GAB quality is marginal even for stock and is not suitable to grow crops. 

“Artesian” in the GAB name means the aquifer is under pressure and a well into it will flow at the surface – similar to early wells in Pullman WA into the Grand Rhonde aquifer.  Pastoralists used this feature, drilling approximately 4000 wells in the late 1800’s to early 1900’s, and leaving them to flow.  This made possible the raising and driving of livestock to market.  The cumulative flow of these bores has begun to impact the GAB and the famous mound springs and waterholes it supports with their rare and fragile ecosystems.  In recent years the Commonwealth, in partnership with the States and Territory overlying the GAB, has implemented a bore rehabilitation program to cap and control the flow. Pastoralists now use stock tanks and run wells only when needed.  The more difficult bores or those that support ecosystems thought important remain.  Some recovery of GAB pressure has been measured.  Life of the rehabilitation is estimated at 30-50 years and no program is yet in place for cap maintenance. 

The outback of Australia is as much a lifestyle as it is an ecosystem.  Many of the stations now supplement income with tourism, like Rawnsley Station where we stayed.  Like our western ranch towns, the population is aging with the young headed to the coastal cities.  Whether the capping programs will render the water supply for this lifestyle sustainable, whether enough children will stay to find out, remains to be seen.  Crossing the Goyder Line back into wheat fields and then grapevines, it seems an iconic part of Australia would be lost if they fail.  


March 11, 2015 | Permalink | Comments (0)

Tuesday, March 10, 2015

Uber Goes to the State House Seeking Preemption of Local Government Control

It appears the next step in the sharing economy wars is upon us.  When the sharing economy company is stymied by local government regulation, it appears that sharing economy companies are increasingly willing to go for the nuclear option:  a state statute preempting local control of sharing economy uses.  

Such a bill was just introduced before the Idaho Legislature a couple weeks ago.  The bill was largely written by Uber, which has had an acrimonious negotiation with Boise City because the city wants the company to do very basic things, such as run background checks on drivers.  Uber has decided, apparently, that it can't be bothered to follow even the most cursory of regulations (Boise is requesting far less than major cities have of Uber).  As a result, Uber has decided to do an end-run around the city and try its hand at the state level.  More about the back story here and here.

The proposed Idaho legislation is here.  A cursory review of the Internet found legislation for "transportation network companies" filed in Florida on the same day as in Idaho (February 26).  Washington also appears to be considering such legislation, and other states have previously considered TNC legislation.  However, the Idaho legislation appears unique, thus far, in preempting local control completely.  The Idaho legislation would provide:

Notwithstanding any other provision of law, TNCs and TNC drivers are governed exclusively by this chapter. No municipality or other local entity may impose a tax on, or require a license for, a TNC, a TNC driver, or a vehicle used by a TNC driver where such tax or licenses relates to providing TNC services, or subject a TNC to the municipality or other local entity's rate, entry, operational or other requirements.

Do any other states have such legislation?  Perhaps an uber-end-run around local governments is coming to a state house near you!

Stephen R. Miller


March 10, 2015 | Permalink | Comments (1)

How to Read the American West

I spent much of last week at Stanford's Bill Lane Center Rural West Conference, which was held this year in Troutdale, Oregon just outside of Portland.  The excellent interdisciplinary conference introduced me to some wonderful scholars and works that I plan to share over the coming weeks.  

The first of these is Bill Wyckoff's (Montana State - Geography) wonderful new book, How To Read the American West.  Below is a YouTube video in which Bill gives a description of the project, which is organized around 100 western cultural and geographic features.  In the video, you can see some of Bill's pictures taken from several years of traveling through every county in the western United States.  It seems destined to be a classic work on the American west of the early twenty-first century.


March 10, 2015 | Permalink | Comments (0)

Monday, March 2, 2015

Water Down Under: A Report from Australia by Barbara Cosens: Post 5: Indigenous Rights to Water and Capacity Building

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts herehere, here, and here.]

The colonial and frontier history of both the United States and Australia had devastating impacts on Indigenous populations.  Similar to other areas of law, both countries began with a basis in the laws and approach to colonization of England, but they diverged in their definition of the rights of the Indigenous people inhabiting the land they came to colonize. 

While the United States “negotiated” treaties with Tribes, Australia adopted the concept of terra nullius – the land belonged to no one.  It was not until the High Court of Australia in Mabo v. Queensland, rejected the concept in 1992 (yes, 1992 not 1892) and the Commonwealth passed the Native Title Act in 1993, that Indigenous people could begin to assert the right to land and water in Australia. 

In rejecting the application of terra nullius to Australia in Mabo, High Court Justice Brennan stated: 

[a]ccording to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. 

Mabo was a watershed moment in the rights of Aboriginal Australians, yet it was also a ruling with limitations. The High Court in Mabo recognized no sovereign role for Aboriginal people.  Instead, it considered the rejection of terra nullius to lead to recognition of traditional ownership of land and water, not to recognition of sovereign control over that territory.  The Native Title Act allows exercise of certain hunting, fishing and cultural rights free from State regulation, but to date this has been a fairly limited area of sovereign authority. 

In contrast, the United States began by negotiating treaties with Tribes that at least legally reflected the same process it would use with foreign nations (i.e. Advice and Consent of the Senate) it quickly eliminated that approach and at the same time the U.S. Supreme Court articulated the concept that Tribes were “quasi-sovereigns” subject to the plenary power of Congress.  In recent decades the U.S. Supreme Court has taken an increasingly narrow view of Tribal sovereignty.  Nevertheless, the recognition of even limited sovereignty stands in stark contrast to Australia. 

This difference struck a chord with me as the result of my experience in both observing and participating in the review of the Columbia River Treaty.  The Tribal voice as sovereigns at the table and their expertise and credibility as co-managers of the U.S. Columbia River salmon fisheries altered the shape and substance of the U.S. regional review process.  Their participation was instrumental in the regional decision to recommend elevation of ecosystem function to a third prong of the treaty, along with hydropower and flood control.  This broadening of management values away from optimization for limited engineered services, if followed, would enhance basin resilience in the face of growing population and climate change for all basin residents. 

Tracing the rising voice of the four U.S. Columbia Basin Tribes that now form the Columbia River Inter-Tribal Fish Commission (CRITFC), a three stage process emerges: (1) original articulation of the right in the 1855 treaties guaranteeingthe right of taking fish at all usual and accustomed places in common with citizens of the Territory; (2) definition of the right in the 1974 Boldt decision as up to 50% of the harvestable fish passing a U&A (as a usual and accustomed place is referred to); and (3) capacity building to assert that right.  It is this final step, capacity building, in which the Tribes have built the sophisticated fisheries science and policy management agency we see today in CRITFC.  Only through development of capacity have the Tribes been able to assert their own vision, incorporate their own traditional knowledge, and bring to the table a sophisticated view of modern tribal needs that are not arrested in a historical romanticized view of Native peoples.  Truly this is what the UN Declaration on the Rights of Indigenous Peoples means by self-determination. 

My own view was that the two stages of articulation and definition of the right were necessary precursors to capacity building.  Not so.  I have learned of an innovative approach by the Ngarrindjeri Nation in South Australia that approaches capacity building from the opposite direction and holds substantial promise for broadening the vision of land and water management in areas with claims to Native Title. 

Without treaties or the recognition of even limited sovereignty, and with claims to Native Title pending, the Ngarrindjeri Nation has begun the process of entering private contracts with local government to secure their voice in management of the land and water at the Murray Mouth – the biologically rich estuary and wetlands near the mouth of the Murray-Darling River (see photo below).  The Ngarrindjeri Nation has reached out to federal, state and local government to both seek funding for capacity building and to participate in resource decisions.  The partnerships they are developing not only resemble what we see with CRITFC, but may go a long way to easing tension over claims to Native Title in areas shared by non-Native people. 


I learned of the work of the Ngarrindjeri Nation from two amazing scholars and activists at the Yunggorendi First Nations Centre at Flinders University – Daryl Rigney and Steve Hemming.  In what might be referred to as participatory action research, they have both worked with the Ngarrindgeri Nation to develop this approach and studied the results, an approach that not only speaks to the effectiveness of the Yunggorendi Centre, but increases the potential for transfer of this approach to other settings.  It has convinced me that while rights, or at least the threat of their establishment, are an important step in the process, it is the building of capacity for First Nations to speak for themselves that is the key component to their success.

March 2, 2015 | Permalink | Comments (0)

Sunday, March 1, 2015

Land Use Law-Related Articles Posted on SSRN in February

Here are all the articles posted on SSRN  in February that self-identified as being land use law-related (search term "land use," time period "one month").



State Initiatives 
Global Climate Change and U.S. Law, Ch. 10, p. 303, 2014, Widener Law School Legal Studies Research Paper No. 15-05
David Hodas 
Widener University - School of Law 



Regulating the Underground: Secret Supper Clubs, Pop-Up Restaurants, and the Role of Law 
University of Chicago Law Review, Vol. 82, No. Dialogue, 2015
Sarah Schindler 
University of Maine - School of Law 



Land Use Exactions, Anti-Evasion, and Koontz v. St. Johns River Water Management District 
Michael B. Kent Jr. 
Campbell University - Norman Adrian Wiggins School of Law 



Legislative Exactions after Koontz v. St. Johns River Management District 
Luke Anthony Wake and Jarod M. Bona 
National Federation of Independent Business and Bona Law PC 



What Will China Do When Land Use Rights Begin to Expire? The Evolution Toward Rule of Law in Real Estate 
Gregory M. Stein 
University of Tennessee College of Law 



Facing Down the So-Called Agenda 21 ‘Conspiracy’ Lessons for Planners 
Planning Magazine, February 2015, Widener Law School Legal Studies Research Paper No. 14-26
John C. Dernbach 
Widener University - School of Law 



First Principles for Regulating the Sharing Economy 
Stephen R. Miller 
University of Idaho College of Law - Boise 



Islam Incarcerated: Religious Accommodation of Muslim Prisoners Before Holt v. Hobbs 
Khaled A. Beydoun 
Barry University - Dwayne O. Andreas School of Law 



'A Tinge of Melancholy Lay Upon the Countryside': Agricultural Historic Resources within Contemporary Agricultural and Historic Preservation Law 
Virginia Environmental Law Journal, Vol. 33, No. 56, 2015
Jess R. Phelps 



Understanding Flood Risk Decisionmaking: Implications for Flood Risk Communication Program Design 
Resources for the Future Discussion Paper 15-01
Carolyn Kousky and Leonard Shabman 
Resources for the Future and Virginia Polytechnic Institute & State University - Department of Agricultural and Applied Economics 



The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy 
Harvard Law & Policy Review, Vol. 9, 2015, Cardozo Legal Studies Research Paper No. 448
Marci A. Hamilton 
Cardozo Law School 



On Engineering Urban Densification 
Brigham-Kanner Property Rights Conference Journal, Vol. 4 (Forthcoming), George Mason Law & Economics Research Paper No. 15-06
Steven J. Eagle 
George Mason University School of Law 



How Local is Local?: A Response to Professor David B. Spence's The Political Economy of Local Vetoes 
Texas Law Review See Also, Vol. 93, pages 61-74, 2015
Joshua P. Fershee 
West Virginia University - College of Law 



Farmer's Response to Changing Climate in North East India 
De, U. K., Farmer’s response to changing climate in North East India, 2015, AIP Conference Proceedings, Malaysia, 1643, 30., 
U. K. De Sr. 
North-Eastern Hill University (NEHU) - Department of Economics 



Modeling the Effects of Land Use Change and Management Practices on Runoff and Sediment Yields in Fincha Watershed, Blue Nile 
OIDA International Journal of Sustainable Development, Vol. 07, No. 11, pp. 75-88, 2014
Abdi Boru Ayana Desalegn Chemeda Edossa and Ekasit Kositsakulchai 
Oromia Bureau of Agriculture , Central University of Technology - Department of Civil Engineering and Kasetsart University - Department of Irrigation Engineering 



The Federal Emergency Management Agency: Floods, Failures, and Federalism 
Cato Institute Policy Analysis, No. 764, November 2014
Chris Edwards 
Cato Institute 



Economic Behavior, Market Signals, and Urban Ecology 
NBER Working Paper No. w20959
Joshua Abbott H. Allen Klaiber and V. Kerry Smith 
Arizona State University (ASU) , Ohio State University (OSU) - Department of Agricultural, Environmental & Development Economics and Arizona State University (ASU) - Economics Department 



Free Exercise in the Lobbying Nineties 
Nebraska Law Review, Vol. 84, p. 795, 2010
Brad Jacob 
Regent University School of Law 



How to Make America Walkable 
42 Real Est. L.J. 512 (Spring 2014), Touro Law Center Legal Studies Research Paper
Michael Lewyn 
Touro College - Jacob D. Fuchsberg Law Center 



Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny 
Northwestern Public Law Research Paper No. 15-08
David M. Shapiro 
Northwestern University School of Law 



More than Just a Housing Problem: Learning from Gawad Kalinga's Experience 
AKI Policy Brief, Volume III, No. 4, 2012
Raymund Basco Habaradas and Martin Lorenzo Aquino 
De La Salle University and De La Salle University 



Urbanization and Economic Development in Madhya Pradesh: Policy Implications for Sustainable Forest Management 
A. K. Singh, V. B. Gupta, Ram Kumar Jha (2013), “Urbanization and Economic Development in Madhya Pradesh: Policy Implications for Sustainable Forest Management”, Journal of Energy, Environment & Carbon Credits, Volume 3, Issue 1, pp. 22-30 (ISSN: 2249- 8621), 
A. K. Singh V. B. Gupta and Ram Kumar Jha 
Devi Ahilya University , Devi Ahilya University and CUTS International 



Water and Wastewater Infrastructure in the United States: The Clean Water-Energy-Climate Nexus 
Geo. Wash. Journal of Energy and Environmental Law 1-21 (Summer 2013)
Robert W. Adler 
University of Utah - S.J. Quinney College of Law 



Determining Rural Areas Vulnerable to Illegal Dumping Using GIS Techniques. Case Study: Neamț County, Romania 
13th International Multidisciplinary Scientific GeoConference on ECOLOGY, ECONOMICS, EDUCATION AND LEGISLATION, SGEM 2013 Conference Proceedings Vol 1 : 275-282,DOI:10.5593/SGEM2013/BE5.V1/S20.037 
Florin Constantin Mihai A. Ursu Pavel Ichim and Dan-Adrian Chelaru 
Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography and Alexandru Ioan Cuza University - Department of Geography 



From Litigation to Legislation in Exclusionary Zoning Law 
Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 22, p. 623, 1987
Harold A. McDougall 
Howard University School of Law 



Pour une politique d'équilibre du territoire (For a Balance Territory Politic) 
Revue des Deux Mondes, May 1993
Gérard-François Dumont 
University of Paris 4 Sorbonne 



Comparing Three Life Cycle Impact Assessment Methods from an Endpoint Perspective 
Journal of Industrial Ecology, Vol. 19, Issue 1, pp. 20-26, 2015
Bo Weidema 
Aalborg University 



Shared Spatial Regulating in Sharing-Economy Districts 
Arizona Summit Law School Research Paper No. 2015-A-01
Michael N. Widener 
Arizona Summit Law School 



The Land Use Act and Land Ownership Debate in Nigeria: Resolving the Impasse. 
Akintunde Kabir Otubu 
University of Lagos - Faculty of Law 


March 1, 2015 | Permalink | Comments (0)

Saturday, February 28, 2015

March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West

The Stanford Bill Lane Center for the American West is hosting its annual inter-disciplinary Rural West Conference this March 4-6 in Troutdale, Oregon (just outside of Portland).  The theme this year is Preservation and Transformation:  The Future of the Rural West.  I'm delighted to be a participant in what I imagine will be some excellent dialogue.  Stop by if you can.  Here is a link to the schedule with the general outline reproduced below.

Wednesday, March 4

4:30–5:00 pm:  Registration

5:00–7:30 pm:  Informal welcome reception and data visualization talk by Geoff McGhee and Thomas Favre-Bulle

Thursday, March 5

8:15–8:30 am:  Registration (for folks who can't attend the Wed. night reception)

8:30-9:00 am:  Breakfast welcome with David M. Kennedy, Pulitzer Prize-winning historian and founding Faculty Director of Stanford's Bill Lane Center for the American West

9:15–10:45 am:  Panel 1: Fewer People Means Less Crime… Right?  The Unique Challenges of Policing the Rural West

10:45–11:00 am: Coffee break

11:00–12:30 pm:  Panel 2: Whose Land Is It, Anyway? Perspectives on Land Protection and Access in the 21st Century

12:30–1:50 pm:  Lunch 

2:00–3:30 pm:  Panel 3: Beyond Barren Farms and Empty Houses: The Rural Western Economy, Past, Present, and Future

3:30–4:00 pm:  Snack break

4:00 pm–5:30 pm:  Panel 4: Smart Phones and Hay Bales: Generation Z’s Future in the Rural West

6:00 pm–7:30 pm:  Dinner and Keynote speech by William Wyckoff

Friday, March 6

8:30–9:00 am:  Breakfast

9:00–10:30 am:  Panel 5: Conflicts and Intersections in Rural Western Cultures 

10:30–10:45 am:  Coffee break

10:45–12:15 pm:  Panel 6: A Western Wish List: Ideas, Rights, and Services that Could Transform the Region 

12:15–1:30 pm: Lunch and closing remarks by political scientist Bruce E. Cain, Faculty Director of Stanford's Bill Lane Center for the American West


February 28, 2015 | Permalink | Comments (0)

Friday, February 27, 2015

March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law

A note on an upcoming event from Tony Arnold (Louisville):


If you will be in the Louisville, KY, area on this coming Tuesday, March 3, please join us at the University of Louisville Brandeis School of Law for the Boehl Distinguished Lecture in Land Use Policy, which will be given by J.B. Ruhl of Vanderbilt University.  The Lecture is at 6 pm on 3/3 in Room 275 of the Law School (large lecture hall, 2nd floor, East Wing of Wilson Wyatt Hall), and is free and open to the public.  J.B. will be speaking on "Localism and the New Language of Nature."  I'm excited that J.B. will be joining us and sharing his keen insights with our community.  He joins an increasingly long list of distinguished scholars who have given Boehl Distinguished Lectures in Land Use Policy at the University of Louisville since 2007 (including a number of you on this list).  The Boehl Distinguished Lecture Series is supported by the Boehl Chair Endowment Fund, the Kentucky Research Challenge Trust Fund, and the Center for Land Use and Environmental Responsibility. 

February 27, 2015 | Permalink | Comments (0)

Wednesday, February 25, 2015

Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs

California's bar has proposed a rule for whether attorneys' blogs must comport with rules that govern attorney advertising.  Here is the proposed test:

1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.

Read the entire proposed rule here.

February 25, 2015 | Permalink | Comments (0)

Tuesday, February 24, 2015

Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)


Two great events are upcoming from the Rocky Mountain Mineral Law Foundation.  Descriptions from RMMLF below:

61st Annual Institute

July 16-18, 2015

Anchorage, Alaska

Registration is now open for the 61st Annual Rocky Mountain Mineral Law Institute.  You can print a complete 12-page brochure and register for the Institute at our website:  Although you might have already reserved a hotel room, this is your first opportunity to register for the conference.

All sessions will take place at the Dena’ina Convention Center in Anchorage, within easy walking distance of most of our hotels.  Several of our properties are already sold out, but the Sheraton and the Hilton still have room availability at our discounted rates.  A detailed map is included in the brochure, along with information on things to do, discounted rental cars, and some fun events.

* * * *

Registration is now open for the 17th Institute for Natural Resources Law Teachers, May 27-29, 2015, at the University of Utah S.J. Quinney College of Law.  A complete brochure is below.  Online registration is available at, along with information about discounted room reservations at the University House and car rentals. 

We have a great program in Salt Lake City, including a Wednesday field trip along the Great Salt Lake, to Antelope Island State Park, and up to Snowbasin Resort in the Wasatch-Cache National Forest. 

As you probably know, this Institute is co-sponsored and heavily subsidized by the Rocky Mountain Mineral Law Foundation, the Institute for Energy Law of The Center for American and International Law, and the Section of Environment, Energy and Resources of the American Bar Association.  In addition, the Energy & Mineral Law Foundation has rejoined us as a sponsoring organization.  We thank our co-sponsors for their continuing support of this conference over many years. 

Download NRLT15news


February 24, 2015 | Permalink | Comments (0)

Monday, February 23, 2015

First Principles for Regulating the Sharing Economy

It seems like a lot of folks are writing about the sharing economy these days; I will hope to profile some of them in the coming weeks (feel free to send abstracts of your articles to me to post).  My offering on the subject was just posted to SSRN and is titled First Principles for Regulating the Sharing Economy.  Here is the abstract:

This Article posits ten first principles on which a regulatory response to the sharing economy must rest. Given the rapid differentiation in the sharing economy, the Article gives particular focus to the short-term rental market, typified by Airbnb, as one lens through which to illustrate these principles. The Article then turns to review existing regulatory responses to the sharing economy. Here again, the Article focuses on regulations related to the short-term rental market with a particular emphasis on the two strictest existing local government regulatory structures, which are those of San Francisco and Portland. The Article next proposes a response beyond such traditional regulatory strategies, which this article asserts are not well suited to regulating the sharing economy. Instead, this Article proposes a markets-based mechanism, transferable sharing rights, which is better suited to internalize externalities of the most daunting challenges in the short-term rental market. Finally, the Article examines the corporatization of the sharing movement and the implications for regulations as sharing evolves from a peer-to-peer enterprise to one where established market participants assert themselves in the sharing economy’s new domains.

I welcome comments.  This is a fast-moving area of law still very much in flux; for instance, just last month, a federal district court judge dismissed a lawsuit filed against the City and County of San Francisco's STR Market ordinance, and HomeAway is threatening to sue New York City if it enacts an STR Market ordinance.

Stephen R. Miller

February 23, 2015 | Permalink | Comments (0)

Friday, February 20, 2015

Webinar on New Markets Tax Credits and rural CED: Thursday, Feb 26

I'm delighted to be part of a webinar next Thursday, February 26th on New Markets Tax Credits with the Montana Community Development Corporation's Dave Glaser.  The webinar sponsor is the Initiative for a Competitive Inner City, a non-profit started by HBS prof Michael Porter back in the Nineties.

Register here (the link in the graphic may not work).

Details below.


Next CEO Series Webinar

February 20, 2015 | Permalink | Comments (0)

Update on Pace Law / Yale F&ES project on local governance of hydraulic fracturing

News from John Nolon about the Pace Law / Yale F&ES work on local governance of hydraulic fracturing:

Pace Law School’s Land Use Law Center and the Yale School of Forestry and Environmental Studies (F&ES) are collaborating to identify the distinctly local impacts of hydraulic fracturing and how local governments can respond where they are not satisfied that federal and state regulations properly mitigate these local effects.  The attached guest blog by Christopher Halfnight, F&ES '15, reports that this joint research team is “building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges. The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development. The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development. The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.” The full blog is here

February 20, 2015 | Permalink | Comments (0)

Thursday, February 19, 2015

Gorillas, Elephants and Local Regulation of Hydraulic Fracturing

The Supreme Court of Ohio weighed in this week on state versus local control of oil and gas operations, in a case, Morrison v. Beck Energy Corp, that included 3 separate dissenting opinions, one of which invoked gorillas and another of which invoked elephants in colorfully making their case. The concurring opinion likely means that the court raised more questions as opposed providing very many answers. However, the panoply of arguments in the opinions generate, at least to me, some fascinating thoughts on the line between zoning and state regulation of oil and gas operations, the topic of my recent law review article. I wish this decision had been released prior to the completion of my article!

Ohio R.C. Chapter 1509 gives the state government "sole and exclusive authority" to regulate the permitting, location, and spacing of oil and gas wells and production operations. The question raised is whether the Home Rule Amendment to the Ohio Constitution grants the city of Munroe Falls the power to "enforce its own permitting scheme atop the state system". The court ruled that it does not.

Ohio R.C. 1509.02 preserves local authority in two categories: control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts; and the power to grant permits to operate certain heavy vehicles on highways within the locality. However, these powers cannot be exercised in such a way as to discriminate "against , unfairly impede, or obstruct oil and gas activities and operations regulated" under the state code. The state regulations address well spacing, setbacks, proximity of the well to other wells and private dwellings, safety of the operation, protection of the public and private water supply, fencing and screening, waste containment and disposal, access roads and noise mitigation. Note that many of these issues are commonly addressed by zoning ordinances (see, e.g., Richardson, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (2104).

Beck's permit contained 67 different conditions that related to, among other things, the designation of the site as a municipal wellhead protection area and "urbanized areas" protections, like noise mitigation and parking. Again, the "urbanized areas" conditions appear to be very much zoning provisions.

Soon after Beck began drilling, the city issued a stop-work order and filed a complaint for injunctive relief, alleging that Beck's operations violated multiple city ordinances. Five of those ordinances are at issue. The first requires a "zoning certificate" issued by the zoning inspector under the general zoning ordinance. The other four fall under an ordinance specifically regulating oil and gas drilling. However, even these ordinances relate back to zoning, with one requiring a conditional zoning certificate. The other three relate to the filing fee ($800), performance bond ($2,000 deposit required upon filing) and a required public hearing (at least three weeks prior to drilling), associated with the conditional zoning certificate.

Beck argued that the ordinances conflict with the state statutory scheme. The trial court granted the injunction and required Beck to comply with the ordinances. The court of appeals reversed, rejecting the city's argument that the Ohio Constitution's Home Rule Amendment allows it to impose separate permit requirements on oil and gas operations.

Are the ordinances a valid exercise of home-rule power (a consistent theme among oil and gas local regulation cases)? The amendments gives local governments in Ohio "broadest possible powers of self-government in connection with all matters which are strictly local and do not impinge upon matters which are of a state-wide nature or interest" [emphasis added].  However, the amendment does not allow local ordinances to conflict with general laws. The court set out the test of when a local ordinance must yield to a state statute as containing three prongs: (1) the ordinance is an exercise of police power, not local self-government; (2) the statute is a general law; and, (3) the ordinance is in conflict with the state statute. The city conceded that the ordinances are exercises of the police power.

Four conditions are required to classify a statute as a general law: (1) the statute must be part of a statewide and comprehensive legislative enactment; (2) the statute must apply to all parts of the state alike and operate uniformly throughout the state; (3) the statute must set forth police sanitary, or similar regulations, rather than purporting to grant or limit legislative power of a local government to prescribe regulations; and, the statute must prescribe a rule of conduct upon citizens generally. The city disputed only the second requirement, arguing that only the eastern part of the state has economically viable quantities of oil and gas. The court found that similar arguments had been rejected in earlier cases and rejected this argument.

Using the standard definition of conflict as meaning that the "ordinance permits or licenses that which the statute forbids and prohibits, and vice versa", the court found that the ordinances conflict with the state statute. The court found two types of conflicts. First, rejecting the city's argument that the ordinances and statute regulate "two different things", the court ruled that the ordinances prohibit what the statute allows. Secondly, the court found that the language of the state statute expressly preempts the local ordinances at issue. The judgment of the Court of Appeals was, therefore, affirmed.

A thoughtful concurring opinion seems to remove any force that the majority opinion would otherwise possess. The concurring opinion emphasizes "the limited scope of [the] decision", expressly limiting the decision to the five ordinances at issue. According to the concurrence, the appeals does not "present the question of whether [the state statute] conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s long-term plan for development, by limiting oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling.". I'm not sure that I agree with this assertion. The ordinances at issue in this case sound a lot like zoning to me.

The concurring opinion presents a fascinating argument on preemption. Namely, the opinion states that "location" and "spacing" have specialized, technical meanings in oil and gas law, citing 1 Summers, The Law of Oil & Gas, Section 5.1, at 268 (3d Ed. 2004). These terms relate to maximizing efficiency and protecting correlative rights in the oil and gas realm. Interestingly, these are the state interests that I identified in my law review article as state interests that bans conflict with. I also acknowledge Alex Ritchie's excellent article, "On Local Fracking Bans: Policy and Preemption in New Mexico", 54 Nat. Resources J. 255 (2014), which also recognizes these concerns. I relied some of Professor Ritchie's cogent analysis (contained in an earlier version of his article) in my law review article. 

Justice O'Donnell goes on to reason that, since the state government's notion of "location" and "spacing" are based on different considerations than the local zoning ordinance's notion of "location" and "spacing" that both can co-exist without conflict. I'm not sure that such a fine line can be drawn, or that the state legislature considered this distinction in crafting the state statutes. However, the notion is intriguing. I'll have to think on this one more.

Justice Pfeifer dissented, opining that the state statute "leaves room for [local governments] to employ zoning ordinances that do not conflict with the statute". Justice Lanzinger also dissented, joined by Pfeifer and O'Neill, similarly thinking that the actual ordinances at issue do not clearly conflict with the state statute, and that zoning can co-exist with the state regulation. This dissent cites cases in New York, Pennsylvania and Colorado as supporting the dissent. Lanzinger's conclusion is notable, so I set out that paragraph in full.

"There is no need for the state to act as the thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities. I would reverse the judgment of the court of appeals and remand to that court for further proceedings."

Justice O'Neill's dissent is set out in full below. 

"I join Justice Lanzinger’s well-written dissent. Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill—local zoning dating back to 1920 be damned."

Like the majority opinion in Robinson, which made a similar argument with respect to Act 13, I respectfully submit that Justice O'Neill's assertion may be possible in theory, but not in practice. As pointed out by dissenters in Robinson, the state statute has setbacks and the state agency imposes conditions. In this case conditions pertaining to "urbanized areas" were imposed. The parade of horribles here would never happen in reality. And, "to be clear", the wealthy residents of the neighborhoods listed by Justice O'Neill would never be subjected to oil and gas operations "in their backyards".

So what does this case mean? I'm not sure, but perhaps not much. The arguments may further blur the lines between local zoning regulations and state oil and gas regulation. I'm looking forward to pondering the opinions further and trying to figure it out.

Jesse Richardson



February 19, 2015 | Permalink | Comments (0)

Spence and Fershee on Local Control of Fracking

For those interested in the local control of fracking, there is a nice article by David Spence in the Texas Law Review and a response by Joshua Fershee in the Texas Law Review See Also.  Details and abstracts below.

The abstract for David B. Spence's (Texas Law) The Political Economy of Local Vetoes:

The law is frequently called upon to resolve regulatory conflicts that arise when a majority mildly prefers policy X, and minority strongly prefers policy not X. Two emerging bodies of case law present this problem, both associated with the growing number of challenges to local restrictions on the use of hydraulic fracturing ("fracking") to produce oil and gas. One set of cases involves claims that these local restrictions are preempted by state oil and gas law; the other involves claims that, where a local ordinance survives preemption, it amounts to a regulatory taking. This article explores how the distribution of the costs and benefits of fracking drive the politics that provoke preemption and takings conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns. A close examination of the distribution of the impacts of fracking reveals that while most of the costs (especially the least speculative costs) and many of the benefits fall on locals, other, significant costs and benefits of production extend beyond local government boundaries. This suggests that since the state subsumes more of the impacts within its borders than does the local jurisdiction, the state is better situated to produce regulation that balances the costs and benefits of fracking. However, this line of reasoning does not account for the fact that locals and nonlocals have different preference intensities over this issue. If we want a decision process that accounts for preference intensities (rather than merely preference aggregation), then local government decision-making might do a better job of maximizing welfare, particularly if local governments can capture more of the benefits of production through taxation or other transfer programs. Finally, with respect to takings claims, it seems unlikely that the Supreme Court will adjust takings doctrine to permit the use of compensation schemes that produce efficient outcomes. Rather, it seems more likely that states or the private sector will allow local governments to capture more of the benefits of fracking directly, which offers another path to efficiency.

The abstract for Joshua P. Fershee's (WVU Law) response, How Local is Local?:  A Response to Professor David B. Spence's the Political Economy of Local Vetoes:

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and the benefits of shale oil and gas production fairly and fully.” 

This Response suggests the Professor Spence’s test for local control is a sound, but adds another factor contributing to local control. As noted above, another way of considering local control over oil and gas operations is to view local control as state-level control. This Response proceeds under the premise that each state should decide whether it wishes to allow its municipalities to exercise oil and gas related vetoes. In analyzing whether local vetoes are efficient under Professor Spence’s test, this article analyzes recent decisions in New York, Pennsylvania, and Colorado. 

This Response concludes that as long as state-level regulation is the primary basis for oil and gas regulation, Professor Spence’s overarching rule that state and local governments pursue regulations seeking to balance the costs and the benefits of shale oil and gas production “fairly and fully” is a foundation for good regulation. In this sense, local (meaning state or smaller subdivisions) vetoes are critical, but how “local” the vetoes are is less important. The key, then, is ensuring that courts and regulators are actually balancing costs and benefits.

February 19, 2015 | Permalink | Comments (0)

Last Day for RMLUI Conference's Early Bird Prices

  2015 Rocky Mountain Land Use Institute Conference

Last Day for Early Bird Prices

Today is the last day to take advantage of Early Bird rates for
RMLUI's 24th Annual Land Use Conference.

After today, registrations costs will go up, so take advantage of the lower rates while they're still here.

We have an amazing line up this year.

  • A bonus workshop: Local Responses to Fracking.
  • A keynote by noted author Timothy Beatley.
  • 2 Plenary Lunches:
    • The Genesis and Future of Federal Large Landscape Conservation Policy
    • From Smart Growth to the New Urban Economics
  • 2 Tours:
    • Touring the Alliance Center: A Pioneering Sustainability and Collaboration Hub
    • Touring Denver Union Station
  • 8 Tracks, including our featured track on Resilient Communities
  • 36 Sessions, covering everything from TOD to legal and planning updates to reclaimed water to new technology.

Don't miss out! Visit RMLUI's website or download the conference app for more information. You can also download our event app to get program updates, speaker bios, and more.

  Register today!

The 24th Annual RMLUI Land Use Conference is brought to you in part by:

The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage persons who require assistance to contact Lisa Bingham at or 303-871-6319 for further information.


February 19, 2015 | Permalink | Comments (0)

Tuesday, February 17, 2015

Jane Jacobs' Seoul

A study of walkability in Seoul proves that Jane Jacobs' Death and Life design principles have applicability beyond the shores of Manhattan.  Here is the abstract:

Jane Jacobs’s The Death and Life of Great American Cities (1961) had an enormous influence on urban design theories and practices. This study aims to operationalize Jacobs’s conditions for a vital urban life. These are (1) mixed use, (2) small blocks, (3) aged buildings, and (4) a sufficient concentration of buildings. Jacobs suggested that a vital urban life could be sustained by an urban realm that promotes pedestrian activity for various purposes at various times. Employing multilevel binomial models, we empirically verified that Jacobs’s conditions for urban diversity play a significant role with regard to pedestrian activity.

The article:  Hyungun Sung , Sugie Lee, & SangHyun Cheon, Operationalizing Jane Jacobs’s Urban Design Theory: Empirical Verification from the Great City of Seoul, Korea.  Journal of Planning Education and Research 1–14 (2015).  DOI: 10.1177/0739456X14568021.


February 17, 2015 | Permalink | Comments (0)

Sunday, February 15, 2015

NPR takes on new urbanism

Last week, NPR's Cities Project ran two interesting stories about a new urbanism community in Austin, Texas.  Both are worth a listen, here and here.


February 15, 2015 | Permalink | Comments (0)

Friday, February 13, 2015

CFP: Land Policies in South Asia: Promises, Practices and Challenges

Thanks to Eran Kaplinsky (U Alberta Law) for bringing this conference to our attention.


Land Policies in South Asia: Promises, Practices and Challenges

First South Asian Regional Conference of the International Academic Association on Planning, Law, and Property Rights  

(1st SARC PLPR) 

1 - 3 September 2015

National Law School of India University, Bengaluru.


Call for Papers:

The land question is central to the South Asian development tale for at least two reasons: First, the majority of its population stills obtains their livelihood from agriculture and allied activities while landholding is highly skewed; Second, urban planning is facing unprecedented challenges due to a gush of migration to cities seeking livelihood resulting in bourgeoning property values. 

Responses to these challenges through laws and policies have been very high compared to the academic attention they have received. Yet, practices emerging from planning and policies have exposed limited reach on the extent of problems. This paradox calls for serious introspection and academic engagement.

The conference welcomes papers that provide theoretical analysis, economic/social analysis of planning, case studies of the implementation of planning and regulation instruments, practices related to law and planning, analysis of case laws in a selected segment. We particularly encourage students who can imaginatively approach the traditional issues even if their ideas are controversial.

Some of the tentative topics to which invitation is made are:

  • Property Rights and Markets
  • Informal Housing
  • Environmental Laws and Regulations
  • Land Acquisition Practices and Policies
  • Property and Exclusion
  • Forest Rights
  • Second Generation Land Reforms
  • Real Estate Developments and Regulation
  • Corruption in Planning
  • Illegal Construction and Mining
  • Participation in Planning
  • Smart Cities with innovative land and water management systems  

The last date to submit an abstract (300 words) is 31 March. All abstracts will be peer reviewed and decision about the inclusion of paper in the conference will be communicated in the last week of April 2015.

Visit for further details

February 13, 2015 | Permalink | Comments (0)

Thursday, February 12, 2015

Water Down Under: A Report from Australia by Barbara Cosens: Post 4: The nature of the right to water

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts herehere, and here.]

In the first of three conversations with UIdaho 3L law student Claire Freund on adaptability of Australian and U.S. water law introduced in an earlier blog, we explore the nature of the right to water.  Adaptability in the face of the uncertainties created by the intersection of climate change and population growth requires an overlapping capacity to respond at multiple levels of water management including the individual.  Yet rapid response can be destabilizing if not carefully prescribed.  In the case of an essential and common pool resource like water, a balancing act between governmental discretion to manage and the certainty of individual investment in development of water must take place.  We see this play out in the various ways governments approach defining the nature of the water right – specifically (1) how much latitude does government have to regulate water allocation and use; and (2) how transferrable are individual water rights. Australia and the western U.S. are currently following very different trajectories on these issues.   The degree of latitude for government regulation depends on the how we define the property interest of the water user.  In both countries this issue is currently in the lower courts and (fortunately) not settled law. Both Australia and the U.S. began their process of defining that interest with adoption of the common law of England.  Aridity over much of Australia and that portion of the U.S. west of the 100th Meridian, led to substantial divergence from English common law in both countries.  Both retain the concept that water is a public good, held by the state but with individual use rights. But, whereas Australia adopted a concept of shared shortage, the western U.S. rewarded investment by granting superior rights to those who developed first.  Currently, Australia defines water rights as subject to considerable regulation by the state.  Reductions due to drought or environmental needs of up to 70% of historic use in a process or registration of rights have not required compensation -- an outcome that would result in rebellion among water user communities in the U.S.  In contrast, U.S. lower courts currently view any reduction in beneficial use as the result of governmental regulation as compensable -- an odd outcome that results in government having less latitude to regulate use of a public good than it has to regulate land use.  Somewhere between the two viewpoints lies the most legally defensible as well as the most adaptable solution.  One in which government has the power to respond to drought and environmental needs within bounds that provide sufficient certainty for water users to plan.   Complementing the inquiry into adaptive capacity for government regulation, individuals must also have capacity to adapt, both because response is much quicker at the individual level and because it can be tailored to local needs.  This leads us to the question of transferability.  Transferability requires: clarity in definition of the right; authority to transfer; and because water is a shared public good, attention to third party impacts.   In the western U.S., water rights are defined by priority and application to beneficial use and the clarity of this definition has been aided in recent decades by adjudication and the corresponding creation of centralized water right databases.  Australia began addressing the transferability of water rights during the 15-year Millennium Drought (1995-2010) through a process of registration of water rights that included what is referred to as “unbundling”.  Unbundling separated the water right from the land, thus making it transferrable without sale of land.  It is in the attention to third party impacts (one of the greatest limits on transferability of water because of increasing transaction costs), that the two countries have taken very different approaches.  In the western U.S., an individual inquiry into third party impact takes place before any transfer is approved.  In Australia, the government may approve a transfer if it is consistent with the general water plan for the region.  The U.S. process increases transaction costs, but protects other uses of a shared resource.  The Australia process, reduces transaction costs, but substantially increases the possibility of third party impacts.  As with the definition of the property interest, a middle ground between the two approaches might be the best.  In a project with Mike Brady and Jon Yoder, economists from Washington State University, we are looking at definition of the consumptive portion of a diverted irrigation right as the presumptively transferable portion.  Australia’s process of unbundling, taken a step further to separate out the portion of the water right that crops actually consume, could accomplish this without altering the use right itself.  The individualized inquiry into third party impacts would be much faster for the consumptive portion of the right.  Its addition in Australia might then be less onerous.   In the face of increasing demand and drought, both Australia and the United States are wrestling with the same issues regarding the definition and transferability of water right.  In doing so, each would be wise to take a page from the other’s playbook.

February 12, 2015 | Permalink | Comments (0)