PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Monday, November 27, 2006

Harvard/Boalt/UCLA Junior Faculty Workshop on Environmental and Natural Resources Law

From the announcement:

Harvard Law School, Boalt Hall, and the UCLA School of Law are pleased to announce a new, jointly sponsored academic workshop, to be held annually and on a rotating basis at the three institutions. The aim of the workshop is to support the development of junior scholarship in the field of environmental and natural resources law (broadly and inclusively conceived to include interdisciplinary work that cuts across related fields or disciplines). The workshop is a joint east-west coast venture.

TOPICS:

We are soliciting papers from tenure-track scholars either untenured or with no more than three years of tenure. The papers must be unpublished when they are submitted, and may be on topics that include: Environmental Law and Policy, Natural Resources Law and Policy, Land Use, Risk Regulation, International Environmental Law, Environmental Justice, Energy Law, Environmental Federalism, Environmental Law and Constitutional Law, Environmental Law and Administrative Law, Empirical approaches to Environmental Law or Resource Management, Environmental Governance, Environmental Economics and Law.

The inaugural event will take place this summer at Harvard Law School on Wednesday, June 13th. We are aiming to select a small number of papers for presentation at the workshop, which will be an all-day event. Authors will be expected to give a short presentation of their papers at the workshop to be followed by two commentators. The workshop will consist of the selected authors, the three host professors (Professors Freeman of Harvard, Farber of Boalt Hall and Carlson of UCLA), and six to eight guest commentators from the relevant fields.

PAPER SUBMISSION PROCEDURE: Please send papers and any questions about the workshop to Miriam Seifter, Environmental Law Fellow: mseifter@law.harvard.edu.

Ben Barros

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November 27, 2006 in Conferences, Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Thursday, November 2, 2006

Blumm and Bosse on Justice Kennedy and the Environment

Michael C. Blumm and Sherry Bosse (Lewis & Clark Law School) have posted Justice Kennedy and the Environment: Property, States' Rights, and the Search for Nexus on SSRN.  Here's the abstract:

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence provided the margin of victory.

Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases — as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field.

This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years, he has written just one environmental dissent — and that on states' rights grounds, which is one of his chief priorities.

The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging taking demands, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights — which is unassailable — yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation.

At what might be close to the mid-point in his Court career — and with his power perhaps at its peak — Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded do not conflict with Kennedy's overriding notions of states' rights.

Ben Barros

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November 2, 2006 in Land Use, Natural Resources, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, September 14, 2006

Intersection of Environmental Law and Land Use

The Pace Environmental Law Review has an issue available online titled Exploring the Intersection of Environmental and Land Use Law: A Special Issue of the Pace Environmental Law Review, Featuring Commentaries and a Collection of Articles by Professor John R. Nolon.  Looks like interesting stuff.

Ben Barros

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September 14, 2006 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 11, 2006

Research Canons For Property Law

PrawfsBlawg has a great new series of posts on the research canons in different areas of the law.  Here's an excerpt from Matt Bodie's post explaining the basics of the idea:

The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Unlike other disciplines, most law academics do not have an advanced degree in "law."  For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field.  It is only after comps that students go on to complete their specialized dissertation research.

Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise.  But it is left to the individual to get this knowledge.  Certainly, the J.D. provides a baseline, and mentors are helpful in providing further direction.  But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow.  Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?"  Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.

The Research Canons project is intended to fill this gap.

Property and Real Estate will be up for canonical treatment on Wednesday, 9/13.  [UPDATE: the property canons post is now up on PrawfsBlawg].  Property isn't the most cohesive of legal subjects, so I suspect the list will be all over the place.  I'll give this more thought over the next few days, but here are some of my candidates:

The Classics of the Moral and Political Theory of Property

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral"

Great Contemporary Work on Property Theory

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Ben Barros

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September 11, 2006 in Books, Law Schools, Natural Resources, Property Theory, Recent Scholarship, Takings | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 16, 2006

Property Rights in Endangered Species?

That's the subject of an article in today's NY Times.  Thom Lambert at Truth on the Market and Dave Hoffman at Concurring Opinions have good posts reacting to the article.

Ben Barros

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August 16, 2006 in Natural Resources, Property Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 9, 2006

Blumm, Becker, and Smith on Water Rights

Michael C. Blumm, David H. Becker, and Joshua D. Smith (all of Lewis & Clark Law School) have posted The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled on SSRN.  Here's the abstract:

Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights "reserved" from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts — comprised largely of elected judges — could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.

This study aims to begin to fill that gap by examining the results of six Western water right adjudications — five of which were decided by state courts — involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users.

The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements — and even state law — to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.

Ben Barros

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August 9, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 7, 2006

Craig on Coastal and Ocean Ecosystem Serices

Robin Kundis Craig (Florida State University College of Law) has posted Valuing Coastal and Ocean Ecosystem Services: The Paradox of Scarcity for Marine Resources Commodities and the Potential Role of Lifestyle Value Competition on SSRN.  Here's the abstract:

Ocean and coastal ecosystems provide about two-thirds of the ecosystem services that make up the world's natural capital. Despite that fact, the political will to adequately protect these marine ecosystems in marine protected areas and marine reserves generally does not exist. Instead, regulation focuses where the markets focus: on commercial commodities demands for ocean and coastal resources. This traditional commodities-focused market-and-regulatory regime has proven inadequate to protect functional marine ecosystems, as the history of wetlands loss and fishery regulation failure makes clear.

This paper argues that neither the commodities market nor a private property regime is likely to strengthen the political will to protect and preserve marine ecosystems as a whole. Nor, given the paradigm of inexhaustibility, the failure to perceive marine resources as scarce, and the lack of public understanding about the importance of marine ecosystem services, is strengthened political will likely to follow from the numerous scientific recommendations that the United States protect about 20 percent of its ocean resources in marine protected areas and marine reserves.

Instead, this paper explores the potential of new markets for the lifestyle values of marine resources amenities to serve as proxy for a direct public demand for intact and functional marine ecosystems. Specifically, the paper argues that new consumer demands for recreational opportunities, tourism, and eco-living may provide sufficient use competition -- specifically, competition between commodities and amenities users -- to translate the new economic demands into a political will to better protect marine ecosystems and the services that they provide.

I've noted before that I think that the ecosystem services approach provides an important perspective for considering land-use and natural-resources issues.  Oceans present uniquely difficult problems in this area, both because of international law and because many ocean-based natural resources (at least the living ones) move around during their life cycles.  Craig's paper is an important contribution to the discussion of these issues.

Ben Barros

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August 7, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 31, 2006

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College - School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for a decade at the intersection of democracy and ecology. The public is still led to believe that the “conservation” versus “preservation” of our discrete, bounded parcels of public land is the central political issue and that what must happen for one set of values or another to triumph is that one or another faction capture those lands parcel-by-parcel and put them under its preferred legal regime. Experts and activists have transitioned from this philosophy to the open-textured, inclusive notions of “ecosystem” and “adaptive” management on which everyone agrees in the abstract but not in application. The public’s faith in its pluralist administrative state is very much contingent upon its faith in professional expertise, though, even as this whole arrangement becomes increasingly incompatible with any truly “ecosystemic” approach to public lands. Indeed, while active management and “ecological restoration” are probably truer frames of reference for public lands today, the only way these can even possibly frame a progressive conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability. They are facing this dilemma most immediately in their several legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen different enabling statutes.

Ben Barros

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May 31, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2006

King and Fairfax on Land Acquisition and Water Rights

Mary Ann King and Sally K. Fairfax (UC Berkeley) have posted Beyond Bucks and Acres: Land Acquisition and Water on SSRN.  Here's the abstract:

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions’ tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the “riparian mindset.” We also note some basic constraints on “just buying it” associated with these historic acquisitions of land-in-fee.

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements.

We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government’s enormous advantages in litigation are taken into account.

Part V offers some starting points for future discussion. We look at water trusts’ experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law. We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.

Ben Barros

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February 23, 2006 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 22, 2006

Arguments in Clean Water Act Cases

The New York Times and Washington Post both have articles (here and here) on yesterday's arguments in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, two consolidated cases that go to the scope of federal authority to regulate wetlands under the Clean Water Act.  From the WaPo article:

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

Ben Barros

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February 22, 2006 in Land Use, Natural Resources | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 1, 2006

Houston Conference on Natural Gas

The University of Houston Law Center has announced a conference titled Should We Site It Here:  The Environmental Issues Assoicated With Liquefied Natural Gas:

The Expansion of the use of Liquefied Natural Gas (LNG) and how that utilization will occur is probably the most important energy issue that our country has faced since the first widespread adoption of Nuclear Energy. Energy shortages and the accompanying increasing price of natural gas, along with new federal legislation about siting of LNG terminals ensure that LNG will have an enormous future effect on our energy security, energy usage patterns, prosperity and the environment. The University of Houston Law Center's Environmental & Energy Law & Policy Journal will address this important topic at its second annual symposium entitled "Should we Site it Here: Environmental Issues Associated with LNG Development" on Friday, March 3, at the Hilton Hotel on the University of Houston Campus.

This symposium will specifically address the environmental issues associated with the increasing use of LNG in terms of extraction, importation and utilization, and the appropriate body to make siting decisions. This will be the first academic symposium to address these questions and will feature law professors Peter Appel, Eileen Gauna, and Irma Russell addressing federalism, environmental justice, and environmental impacts of fuel switching. The keynote address will be delivered by the Honorable Danny J. Boggs, of the U.S. Sixth Circuit Court of Appeals and former Deputy Secretary of Energy in the Reagan Administration.

Ben Barros

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February 1, 2006 in Conferences, Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 18, 2006

Symposium on the Rule of Capture

A recent volume of Environmental Law (Rule of Capture in 35 Environmental Law no. 4 (2005)) contains a symposium on the rule of capture.  Four of the eight articles from the symposium are now available on SSRN:

The Role of Captives in the Rule of Capture, Lea S. Vandervelde (University of Iowa College of Law).

This article makes two important comments about how the Rule of Capture as a distributional measure excludes certain groups.

First, The Rule of Capture as formulated by John Locke effectively shut out two kinds of co-claimants from the commons of North America: free original inhabitants and men and women who were in the service of others, even when these people were indispensable to the act of capture. Though the Capture rule resonates as an ethically based distributional principle, its three ethical premises are not carried through when applied to the commons of North America. The three premises are: 1. first in time, first in right; 2. the deservedness of the laboring person who capture the resource; and 3. hunger as a human condition shared by all. The article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and servants and slaves are excluded despite having strong claims to deservedness as the laboring person who actually does the capturing of the resource. Hence, Locke's formulation as an apologist for conquest and domination appears to have the instrumental and anti-democratic objective of delegitimating the claims of these two groups of peoples to the commons.

Second, using the example of York, William Clark's slave and companion in the Corps of Discovery, the article demonstrates how historical practices operated to continue the subordination of slaves utilized in various phases of conquest. Slaves, like York, were instrumentally used to advance American efforts at Conquest and later settlement. An examination of Lewis and Clark's accounts of York show that these masters treated him with respect and almost partnership while in the wilderness and on Indian lands during the voyage of discovery only to relegate him to slavery in several of its worst treatments when the successful mission returned. Having seen the West, having survived the wilderness travel and aided in the mission's success, York was disappointed in his hopes and expectation of winning freedom for his heroic efforts upon returning to civilization. His treatment was completely at odds with the treatment of every other member of the troupe who were showered with laurels of increased recognition, status, and material gain.

The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, Michael C. Blumm and Lucas Ritchie (Lewis & Clark School of Law).

The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transferred to English common law, capture doctrine became laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own, and therefore control, all wildlife that had been unowned in Rome. Thus, the English concepts of royal forests and hunting franchises imposed substantial limits on the capture of wild animals.

In early America, colonial rejection of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896.

Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife within its borders. This article examines that phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for destriction of wild animals, and 3) offering an affirmative defense against landowner claims of constitutional takings based on restrictive habitat protections.

Three Cases/Four Tales: Commons, Capture, the Public Trust, and Private Property in Land, Dale D. Goble (University of Idaho College of Law).

This article examines the legal universe occupied by animals ferae naturae through an analysis of three cases from the early nineteenth century. The three cases - Pierson v. Post (an 1805 decision of the New York Supreme Court), Arnold v. Mundy (an 1821 decision of the New Jersey Supreme Court of Judicature), and Inhabitants of Stoughton v. Baker (an 1808 decision by the Massachusetts Supreme Judicial Court) - examine the nature of property in such animals. In doing so, the decisions shed light on four recurrent topics in natural resource law: common property, capture, private property in land, and the public trust. Animals ferae naturae have particular relevance to these issues. For Locke and the Enlightment civilians, animals ferae naturae were the paradigm of an unowned thing; they were the then-current analog of the state of nature, that imagined starting point for society. Wildlife law, in short, was often a speculation about the nature and sources of property. The early nineteenth century also has particular relevance to these questions. During this period, federal and state judges worked to reconfigure the common law to account for two ongoing revolutions: the political revolution from monarchy to republic and the economic-social revolution from agrarian-communitarian to market-individualistic. As such, the cases provide insight into the balance between public and private: what scope of unchecked autonomy is to be accorded the individual? what does the individual owe to society?

The Spiritual Values of Wilderness, John Copeland Nagle (Notre Dame Law School).

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

January 18, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)