Sunday, November 30, 2014
For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.
In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.
I. The Indian Land Tenure Challenge
To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.
Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.
Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.
This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)
The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).
The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.
The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.
While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.
In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.
This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.
II. Why It Matters
Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.
On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.
However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.
First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.
Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.
This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.
Thanks again for the opportunity to discuss this and other issues here this month.
- Jessica A. Shoemaker
November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)
Tuesday, November 25, 2014
California appellate court strikes down EIR for San Diego's land use-transportation plan under SB 375
In 2008, California enacted the Sustainable Communities and Climate Protection Act, typically referred to as SB 375. SB 375 required regional planning agencies to draft plans that would, in effect, reduce GHG emissions by linking land use and transportation planning. At the time of passage, many wondered whether SB 375 would have any real effect on land use patterns because there was no legal hook in SB 375 to mandate compliance for regions that didn't meet the strictures of the law. The question remained, though, whether California's environmental review statute, the California Environmental Quality Act, might still prove a means of enforcement for SB 375 through its mandated environmental impact report (EIR) process.
Yesterday, in Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394 (Cal. Ct. App. Nov. 24, 2014), the California Court of Appeal held that the EIR for the San Diego region's SB 375 plan was inadequate under CEQA. Although the case will almost certainly head to the California Supreme Court, the decision is huge for the future of SB 375. If the case is appealed and the California Supreme Court upholds the Court of Appeal's decision, CEQA will seemingly provide a legal remedy for failure to comply with SB 375. If that is the case, the country may have its first, enforceable land use law that links land use and transportation planning to reduce GHG emissions. Ultimately, we will have to wait for the inevitable appeal to the California Supreme Court. In the meantime, here is a link to the decision and the court's summary of its decision is below:
The following is a guest post from John R. Nolon, Pace Distinguished Professor and Counsel to the Land Use Law Center at Pace Law School.
One of the clinical activities of the Land Use Law Center at Pace Law School is hosting a bimonthly meeting of the corporation counsel of twelve cities, whose mayors we gather quarterly to discuss and resolve issues pertaining to urban redevelopment. We call the latter the Mayors’ Redevelopment Roundtable and the former the Corporation Counsels’ Roundtable and we serve both as adjunct counsel, along with our students.
At a recent meeting of the Corporation Counsels’ Roundtable, the municipal attorneys asked us to help them think through whether and how to regulate AirBnB rentals. Some of their mayors think it is a good initiative and others were worried about the adverse effect that AirBnB might have on buildings and neighborhoods. The lawyers wanted some guidance, so we wrote the following draft memorandum. It is a work in progress, submitted to the Land Use Law Profs Blog with the hope of generating some additional advice on the options local governments can consider as they encounter problems with AirBnB. I am happy to take such suggestions off-line at firstname.lastname@example.org.
AirBnB, part of the sharing economy, describes itself as a pioneering home rental service that allows homeowners to list their residences for short-term occupancy by visitors who stay for typically short durations. Owners of apartments and condos, even commercial buildings, are allowed to list their space as well. Occupancy is arranged through the internet, fees paid, and the parties connected. So far, AirBnB occupancies have largely escaped local land use regulation.
The occupancy of space for short-term rentals is a land use that is contemplated in bed and breakfast, transitory housing, and hotel and lodging regulations under traditional zoning codes. Such occupancy in single-family homes, condos, apartments, and commercial building raise legal issues. Are they illegal? Should violations be enforced? How? Should they be legalized? If so, how?
Single-family and multi-family dwellings, under zoning, are regulated as permanent housing where each unit is occupied by a single family. Such dwelling units may be rented, but for permanent occupancy by individual households. Zoning, generally, does not concern itself with whether units are occupied by fee owners or renters for a term. It does, however, concern itself with whether occupancy is permanent, and hence more stable, or temporary, which can create adverse impacts in single-family neighborhoods and apartment buildings.
In the definition section of a typical zoning code, a dwelling unit will be defined, setting the stage for regulating occupancy. One code that we work with regularly defines a dwelling unit as a unit “containing complete housekeeping facilities for only one family (emphasis added).” That same definition states, “The rental units/rooms in a boardinghouse, dormitory, motel, inn, nursing home or other similar building shall not be deemed to constitute ‘dwelling units’”. Separately, a “family” is defined “as any number of persons related by blood, marriage or adoption, or any number of persons who are not so related living together as a single nonprofit housekeeping unit, using all rooms and housekeeping facilities in common and having such meals together as they may eat at home….” These definitions point toward permanent occupancy of a dwelling unit by a single family, not the rental of rooms to unrelated persons who come and go over short periods.
In New York, the Multiple Residence Law, which applies to cities under 325,000 in population, makes clear that residential occupancy is divided between permanent and transient occupancy; it divides dwellings between Class A, for permanent residence, and Class B for temporary or transient residence and regulates them accordingly. A recent report from the Attorney General in New York indicates that over 70% of recent AirBnB rentals in New York City involved the rental of an entire home or apartment for less than 30 days in Class A multiple dwellings or in non-residential buildings. These are deemed by the Attorney General as illegal under the Multiple Dwelling Law, applicable to cities over 325,000 in size, and the New York City Administrative Code.
One likely analogue for regulating short-term, transient rentals of the type fostered by AirBnB is how zoning treats bed and breakfast operations. Bed and breakfast lodgings are a land use often permitted by local zoning codes as a conditional use, subject to various standards and fees, which vary greatly depending on the type of community or neighborhood involved. Zoning may require a certain lot size, limit the number of guest rooms allowed, subject operations to periodic inspections, and require that only a certain percentage of a building be used for the B&B operations, among other requirements.
The New Rochelle zoning code defines bed and breakfast operations as follows: “The renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling.”
Since the AirBnB model does not fit easily into this type of definition, municipalities are struggling to figure out new types of regulations that fit. Under proposed rules in Portland, residents who wish to rent one or two rooms of their primary, single-family residences would be required to obtain a two-year permit, pay a fee of $180 and undergo a home inspection and notify adjacent property owners. Short term rentals of apartments, condos, and commercial spaces are not included in this proposal.
San Francisco’s Board of Supervisors recently voted to adopt regulations that require permanent residents to secure a business license from the city, to show that they have occupied their homes for 275 days out of the last year, with a limit of 90 days of occupancy permitted by AirBnB customers. Landlords are prevented from evicting current tenants to create makeshift hotels. The regulations are being challenged in court and do not take effect until February.
The regulation of AirBnB rentals joins wind turbines, various types of solar energy facilities, geothermal heating and cooling, distributed energy systems, urban farming, xeriscaping, and a host of other new technologies that raise zoning issues. Since, in most cases, they were not contemplated when municipal zoning ordinances were adopted, municipal attorneys and those who represent affected stakeholders are being challenged to reconsider, rethink, and redraft the rules that regulate these emerging technologies. Zoning, now nearing its 100th year, while showing its age, is being rejuvenated as these matters are taken up and resolved.
In each case, it is strategic to figure out how to define the innovative land use involved and then to decide how to regulate it as a principal, accessory, specially permitted, secondary, or prohibited use under the code. How should AirBnB rentals be defined? Is an AirBnB rental a single use, subject to a single definition, or does its insinuation into commercial, multifamily, hotel, and other spaces call for multiple definitions and multiple treatments under zoning regulations?
Monday, November 24, 2014
This post is part of a series based upon my experience as a planning commissioner.
Last month, I was reviewing staff reports in preparation for a planning commisson hearing and saw something I'd never seen before: buried in a public comment was a YouTube link that promised a personal tour of the site in question. I clicked on the link, but alas, the commenter apparently had decided to take down the video as it was no longer available. I did not have a chance to view the link, as a result, but that experience got me thinking:
...why don't staff reports have YouTube videos? One of the major issues with staff reports is the unreliability of photos. What is on the other side of the street from the photo? A video would tell a lot more. Most staff reports these days are digital, anyway, and so embedding a YouTube video would not be onerous.
...why don't more public commenters use video to illustrate the site? With the ready availability of iPhone videos and YouTube postings, why haven't videos become more common in public commenting? Or have they?
...might the inclusion of videos in public commenting create interesting administrative record issues? For instance, if there is a link to a video in a public comment, the planning commission relies on that video in its decisionmaking, and then the video disappears off of YouTube controlled by the private entity, who is responsible for making such videos part of the administrative record?
...what other issues might arise with the introduction of video into planning commission meetings?
I'd love to hear experiences from others out there. Is this something that is common at planning commissions now? Have any cities written code or regs governing video evidence or testimony at planning commissions?
Stephen R. Miller
Wednesday, November 19, 2014
It's been about a month and a half since I last posted to the LUPB, but nobody's changed the password on me, so I guess I'm still welcome! For those few of you who might have been following my career since I left UGA, I'm finally about to open my own practice in Northern Colorado. Also, following the path of Fair Shake Environmental Legal Services, about which I have blogged a bit in the past, I hope to open a law firm incubator for young lawyers who want to do land use and environmental practice in the West.
I've started my own blog about what I'm up to nowadays - I hope some of you will check it out. And, from time to time I'll still check in here (as long as ya'll will let me).
Jamie Baker Roskie
Tuesday, November 18, 2014
On this theme of public participation in land use planning and creating community-driven solutions to ecosystem-level challenges, I want to take this post to share a bit more about a particular tool that I have been working on developing called Plainsopoly. Plainsopoly is a land use simulation “game.” Participants engage around a large game board made up of an image of a hypothetical landscape that looks similar to, but is not exactly, a real space within the Great Plains region. We call the hypothetical space of the game the “State of Plains.” The State of Plains is depicted on the board by an amalgamation of aerial images including the edge of a large city, several small towns, both irrigated and dryland farming areas, the foothills of a larger mountain range, sensitive sandhills habitat, a winding river, and a recognized federal Indian reservation. Participants play the game in small, randomly assigned groups of four to six people and are assisted by a table facilitator. Players roll the dice, move the game piece to a correspondingly numbered geographic square on the game board, and then answer and discuss an open-ended question that poses a specific land use challenge for that particular space.
The questions are intentionally wide-ranging. I developed the question set last year with invaluable input and feedback from a great and generous interdisciplinary group of law students, graduate students, professors, and other experts from across the University and beyond. We incorporated a range of disciplines, including law, planning, natural resources, applied ecology, business, and economics, and as a group, we worked hard to make sure the most difficult and provocative current land use challenges in the Great Plains are incorporated into the game. (Two of my students, Jerry Jefferson and Preston Peterson, were particularly instrumental in this process.) In the current question set, there are questions and challenges relating to urban growth; rural depopulation; infrastructure needs; drought and other climate issues; tourism; new energy siting, including fracking, renewables, and transmission line expansion; invasive species control; water quality and quantity; jurisdictional conflicts; and many other topics.
In addition to covering a wide spectrum of substantive issues, the questions are designed to touch on four bigger themes: (1) Values (values choices as reflected in land use), (2) Making Connections (who should make decisions about land use and land use planning and at what level), (3) Ecosystem Services (how public benefits from private land, especially environmental benefits, are valued and accounted for in land use ordering and landowner decision-making), and (4) Temporal Perspectives (which timeframe land use planners and landowners should consider in assessing the consequences of any land use decision). These four themes are not explicitly addressed during game play; however, the questions are designed implicitly to provoke thinking and dialogue around these larger issues.
This Plainsopoly project came about only because of Professor Alister Scott and his group’s original idea for a land use planning, decision-making, and visioning game that they call Rufopoly. Rufopoly is a game focused on the unique landscapes of the rural-urban fringe spaces of Europe, and the themes of our questions grew out of Professor Scott’s work with stakeholders in this context. In developing Plainsopoly, we collaborated closely with Professor Scott of the Birmingham School of the Built Environment in the United Kingdom and Professor Richard Wakeford, who is currently directing the Kazan Centre in Russia and was previously the Chair of the Organization for Economic Cooperation and Development’s Rural Working Party.
As many readers of this blog may know, the use of games or other simulation exercises is an area of increasing scholarly interest in a range of disciplines, including public engagement and political science studies, natural resource management and applied ecology, psychology, business, and behavioral economics. (For a few brief examples, particularly in the natural resources sector, you might look here and even here.) Although our Plainsopoly tool has been used purely for informal discussion facilitating at invited events to date, it may also have broader potential. My sense is that the game could be used to speed participants’ learning about complex land use interactions and may provoke a valuable period of self-reflection regarding resource and planning challenges across the region. As one participant in one of the Plainsopoly games at the Rural Futures Conference last year said, the game forced him to think not only about his “little piece of land” but also about everyone else’s lands around him: “I was forced to give opinions on what somebody else should do with their little piece of land. You have to challenge yourself at that point and say, if it’s good for them, maybe I have to relook at my opinion about others giving opinions about my land. It’s a very interesting way of taking a landowner and suddenly forcing me to reevaluate my position regarding my piece of ground.”
I have also found that the experience of engaging in a shared, civil dialogue around the game table on hypothetical (but still very realistic) topics that are otherwise highly charged and sometimes difficult to discuss (like private property rights, community planning, and actual land use conflicts) may have significant value in and of itself. There is something very provocative about talking about these actual resources issues in the context of just a slightly modified hypothetical game setting that seems to really liberate people to have a much more open and comfortable conversation on these issues. If we could effectively shape and harness this, I think games like Plainsopoly and Rufopoly could have very useful applications in assisting particular groups in solving real-world problems or developing consensus around specific planning challenges, and in an action-research model, these games might be used to help inform future policy making.
I’ve noticed two big themes in the few times we have played Plainsopoly to date. First, overwhelmingly, participants envision a land use future focused on a very long-term view of sustainability and a vast appreciation for the non-economic values of natural resources. At least in this hypothetical space, a vast majority of participants seem to prefer decisions that are not made based on short-term economic gains and that consider not just one square parcel of property but rather look to an entire region’s interlocking resource dynamics. Of course, in this game space, immediate things like grocery bills and retirement savings accounts do not exist, and the transaction costs of considering issues at a regional level are dramatically reduced. But still, how do we, or could we, translate what appear to be relatively broadly shared values like this into more actual community action?
The second major notable point of interest for me, so far, is implicit in how we designed the game, but it also comes up very often in participants’ reactions to the questions. This relates to the extreme breadth of the range of factors that potentially influence an individual landowner’s decision-making about how he or she uses his or her land. Often, we might think more simply of land use planning and zoning as the relevant forces; however, the game reminds us that so many different law and policy instruments influence landowners—including, as just a few examples, our crop insurance structures, property tax systems, and energy markets. A much harder issue is not only how do we develop a shared vision for the future of these shared spaces but, more importantly, how do we execute it? A persistent theme emerging anecdotally from the game play to date is the way in which top-down strategies have a host of unintended and mix-matched interactions that complicate decision-making and implementation at the ground level. How do we better coordinate these influences?
Happily, we have the opportunity to explore the potential of games like Plainsopoly and Rufopoly to address these and other issues in a more concentrated way over the next year or so. We are just embarking on a new partnership with Professor Scott and several others on a Knowledge Exchange Opportunities grant that we just recently learned has been approved from the Economic and Social Research Council (ESRC) in the UK. The goal of the new grant is to learn from the existing models of Rufopoly and Plainsopoly and another sister game in Sweden and think intentionally about all of the possibilities of this kind of planning, visioning, and decision-making tool. One end goal is to try to develop a flexible resource kit that maximizes the potential of these tools to assist in planning processes and that hopefully is adaptable to a range of settings.
As I am entering this new work, I’ve become an eager student of some new areas of scholarship. For example, I’ve been doing some great reading on critical planning theory as it relates to whether we currently include all of the relevant voices in our typical planning processes and how, if we did achieve greater inclusiveness, such careful collective decision-making about the future of our shared spaces may be powerfully transformative. I have also been looking at the work of others on effective and innovative new governance models. This list includes, for example, Professor Beth Noveck and The Governance Lab at NYU; the procedural justice and group engagement work of Professor Tom Tyler; and the thinking on deliberative democracies and the capacity for informed “bottoms up” decision-making by Professor James Fishkin and the Center for Deliberative Democracy at Stanford. It’s all fascinating stuff, which I also read with a healthy and growing awareness of the potential framing influence of the person who poses the questions – as reflected, for example, in the “nudge” work of Professors Cass Sunstein, Richard Thaler, and others.
I would more than welcome any other thoughts, comments, or ideas as we embark on further work on this endeavor. I’m eager to see where it takes us.
(This last picture has nothing to do with the game, per se, but it's my little girls running in a preserved prairie not too far from our house. One of many special places in the Great Plains worthy of some intentional thinking for its future.)
- Jessica A. Shoemaker
The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.
Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].
However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.
In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth.
The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).
Wednesday, November 12, 2014
I am writing this week from the IUCN's World Park Congress in Sydney Australia. Thousands (at least over 5,000 but they don't have a final count yet) from something like 165 countries are here to work on protecting land and marine resources (with some thought to the people and critters that live on that land).
The Congress kicked off last night with opening ceremonies that involved welcome speeches from politicians, some videos of beautiful places, some modern and traditional dances and of course some didgeridoo. I really think this is a trend more conferences should adopt! Why don't we have local performers come in or some cool tourism videos of the town. It works best of course when it is followed by a big cocktail party, like the one here.
For those of you who haven't been perusing the Environmental Law Prof's blog, you should wander on over there and check out the continuing response to the latest IPCC reports. Lots of our bloggers are appearing there this month and there should be some interesting food for thought.
Cinnamon Carlarne on Finding the Energy to Mitigate
John Dernbach on Reducing Emissions via Sustainable Development
Robin Kundis Craig tackles sustainable development from another angle.
Shannon Roesler responds to imminent risks and present harms
While not strictly a land use issue (although Matt Festa can easily explain to you that everything is a land use issue), I just posted a short essay I wrote for Ecology Law Currents - the online companion to Berkeley's Ecology Law Quarterly. If you haven't noticed, I am generally obsessed with fascinated by mitigation issues and particularly where we privatize mitigation via land trusts (often with conservation easements). In this essay, I discuss the mitigation regime for wetlands under section 404 of the Clean Water Act and criticize the use of preservation of land as a mitigation technique. This essay is a precursor to a longer book chapter that will appear in theory one day, so comments and suggestions are warmly welcomed.
Here is the official abstract:
Preservation is a Flawed Mitigation Strategy
The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.
I often reflect on the paucity of academic interest in land use in Canada. A quick search of the legal literature on Canadian land use returns very little scholarship. In fact, there is virtually none. Even when taking into account Canada's tenfold smaller population than the Unites States, we do not have nearly the per capita academic power attuned to the regulation of land, particularly in the local government context. When I have organized panels with three of us (that is, three of the four legal academics in Canada who write regularly on land use issues), I joke that it is relatively inexpensive to assemble 75 percent of the academic land use expertise in Canada.
One could query whether this is due to an absence of land use conflicts. Big country, few people, lots of land over which to spread. However, given that more than 80 percent of the population is squished within 100 kilometres of our southern border with the United States and that the most populous regions - Greater Vancouver, Toronto and Montreal - are geographically constrained, that argument fails. Vancouver is bordered by mountains, ocean, and the Agricultural Land Reserve, a provincial zone that prohibits non-farm uses on Classes 1 to 5 soils (more on that this month - one of the longest standing, if not the oldest farmland protection regimes in North America and very successful in the rapidly urbanizing regions of British Columbia that are also squarely within an international land market) Toronto is constrained by Lake Ontario and the best farmland in Canada (not such a great farmland protection story there, but the Province of Ontario is working on it). Montreal is an island in the St. Lawrence River.
So if the argument that we are lacking land use conflicts in Canada fails, why is there so little legal scholarship in this area? Unfortunately I believe it has more to do with the regulation of law schools and the drastically fewer legal academics in general in Canada when compared to the United States. All of the law schools in Canada are accredited by the Federation of Canadian Law Societies and each individual provincial law society. Until recently, there had been no new law schools opened in Canada in over a decade. In British Columbia, although we receive over 1000 applications for 105 places at the University of Victoria, the B.C. government has capped our enrollment for as long as I can remember...but I digress.
Back to land use scholarship in Canada. Before reading any further, name one Canadian academic writing on land use in Canada... Good for you! I bet you thought of one of my favourite colleagues, a few of whom I profile in this post. Not only is their work brilliant but they are very interesting people with whom to spend an evening. If you ever have the pleasure of Mariana Valverde's company in Toronto or elsewhere be sure to ask about the Rob Ford era. Likewise, when in Vancouver it is a treat to discuss any aspect of the history of land use in that wonderful city with Doug Harris or Nick Blomley. I have chosen a few books and topic areas that have made a difference to me in my work and that will stand the test of time as classics in Canadian legal land use literature. In no particular order:
Mariana Valverde's newish book, Everday Law on the Street: City Governance and the Challenge of Diversity is the result of five years of empirical research in Toronto attending public meetings and meeting with those involved to evaluate how the City of Toronto employs various legal tools such as zoning and business licencing bylaws. Mariana (Center for Criminology and Sociolegal Studies, University of Toronto) shows how the aspiration for diversity as expressed through law and policy is often thwarted by local politics. A prolific and interdisciplinary legal, social and political theorist, Mariana's work on land use spans the empirical-theoretical spectrum and is truly awe inspiring.
A geographer by trade but not limited in expertise, Nick Blomley (Department of Geography, Simon Fraser University) is clearly one of the heavyweights of law and geography studies, and is well recognized as a founder and leader in Canada. His expansive view of the systemic impact of law on space is breathtaking. While prolific, I describe here two books that are essential reading. Nick's classic is Unsettling the City: Urban Land and the Politics of Property, a wide-ranging discussion of the geographies of property discussed through the particularities of the City of Vancouver. Nick is also a co-editor of the just-published The Expanding Spaces of Law: A Timely Legal Geography (with Irus Braverman, David Delaney and Alexandre Kedar, Stanford University Press) that canvasses the current field of legal geography. Although I am eagerly awaiting its arrival to my mail slot, apparently "[i]t guides scholars interested in the law-space-power nexus to underexplored empirical sites and to novel theoretical and disciplinary resources...[and] asks readers to think about the temporality and dynamism of legal spaces".
The only non-academic in this list, Pamela Blais (Principal, Metropole Consultants Ltd.) has sought to daylight the cost of development in the Greater Toronto region over the past decade. This task of defining the "cost of community services" is well established in U.S. communities but for some reason we still do not include it as a regular part of the project- or plan-specific analysis about the costs and benefits of land development in Canada. Pamela's book, Perverse Cities: Hidden Subsidies, Wonky Policy and Urban Sprawl is the only systematic Canadian analysis of the "market distortions and flawed policy that drive sprawl". Pamela offers a sound critique of typical comprehensive and infrastructure planning, and provides direction for correcting market-oriented mis-incentives.
Finally, arguably the fulcrum of land use scholarship and activity in Canada is Doug Harris (Faculty of Law, University of British Columbia). Doug was instrumental in hosting the Association for Law, Property and Society annual meeting in Vancouver, and the first time in Canada, earlier this year, and he provides us with deeply historical and thorough scholarship on two very different aspects of land use. His most well-known work is in the area of aboriginal law. Doug's first book, Fish, Law and Colonialism: The Legal Capture of Salmon in British Columbia, details the impact of fishing regulation on not only salmon as a fisheries resources but how it had an impact on the placement of communities and the expression of the aboriginal right to fish as part of governance, government and property in indigenous communities in B.C. His second book details the settlement of Indian Reserves and the impact of that process on aboriginal fishing rights in B.C. Called Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925, Doug "maps the connections between colonial land policy and law governing fisheries...rewrit[ing] the history of colonial dispossession in British Columbia".
Doug's other area of scholarship is urban land use and land titles, and we are eagerly awaiting a book on strata property and condominiums. Although no publication information is available, I will put in an advance plug because it will be the definitive statement in Canada on strata property and its host of issues for a long time to come. Doug started exploring strata through a project on the history of the rise of condos in Vancouver and is carrying on with the topic through a seminar at UBC. There are journal articles trickling through the academic scholarship pipeline, and I am just putting it out there that there are at least two of us who cannot wait for the book.
Looking back at this list, although I went on at length about how few legal academics there are in Canada who focus on land use I will boldly say that these four people and their scholarship will give you a good start in the Canadian realm and will encourage you to delve further into that polite land use arena that is Canada.
Tuesday, November 11, 2014
Following up on my introductory post, I was fortunate to get to help facilitate the biannual summit of the Lower Platte River Corridor Alliance (LPRCA) last week. The Alliance is a unique organization composed of three Natural Resource Districts and six state agencies in Nebraska. It aims to work “with people to protect the long-term vitality of the Lower Platte River Corridor” (an area that includes “the Lower Platte River, the bluffs, and adjoining public and private lands located within the floodplain” for approximately 100 miles along the river from Columbus to Plattsmouth). The Lower Platte faces both supply and water quality issues. The river traverses unique rural landscapes and also bisects the expanding Omaha-Lincoln metropolitan areas. It provides water for important agricultural and mining uses in the region, and it is also supplies drinking water for over half of Nebraska’s population. (For more information, look here.)
For me, one of the most unique and important aspects of the Alliance is its focus on supporting locally drawn solutions and strategies to protect the river and the surrounding landscape, especially in the face of great demographic changes. My experience at the summit has me thinking more about my ongoing interest in the role of public participation in complex land use and resource management issues, like planning for the long-term sustainability of this important watershed.
Getting out of the office and elbow deep into some of the real-world debates about the future of the Corridor (where I not only work but also live) was invaluable to me. In many respects, I learned more in one day discussing shelter belts, crop insurance, trail development, Main Street facade improvements, property tax systems, and various potential models for valuing ecosystem services with such a diverse group of landowners, agricultural producers, conservationists, advocates, and government officials, than I probably could have from many days in a library. Somewhat unexpectedly, the primary takeaway for me was some renewed perspective about the role of legal solutions in what are often really ecosystem-level social problems. Although I spend most of my days analyzing and trying to craft legal solutions to real-world problems, back on the ground things looked a little different.
For example, Chuck Schroeder, Executive Director of the Rural Futures Institute (RFI), started the day with a keynote about the resiliency of rural communities within the Corridor and beyond. At one point, he told a story about a small town community working hard on some marketing and revitalization efforts that had struggled to address a blighted property located right at the entrance to the downtown area. The mayor, according to Chuck, complained to two undergraduate students interns (there for the summer as part of an RFI-funded teaching grant for service learning) about this eyesore house and how all their town’s marketing efforts might be undercut if a visitor’s first impression was this dilapidated house and junk-filled yard. Chuck said the mayor and town had tried “everything” to address the house to no avail, but my ever-legal lawyer mind immediately started ticking off other possible legal solutions to the problem: nuisance claims, aesthetic zoning regulations, condemnation, code enforcement, tax enforcement, etc. My issue-spotting lawyer brain was so occupied checking off possible legal procedures that I almost missed the punchline of Chuck’s story. Although the mayor and the town had not had success communicating with the home’s owner about the issue in the past, Chuck said the two student interns took it upon themselves to walk up to the landowner’s door and offer to help him sell the stacks of tires on his lawn and recover some cash for them…. The homeowner, pleased with the result and liking the student interns who helped put some money in his pocket, then proceeded to let the interns and some other community volunteers engage in additional clean up work around the house. Problem almost immediately solved.
It’s a simple story, but for me an important reminder. In my rush to legal analysis, my instinct was not to consider first what might motivate the landowner to fix the problem himself or what may be standing in the way of him doing so. Or how public engagement in the clean up process might be the most efficient and simple solution, while also likely creating a host of other intangible community benefits.
I was also struck at the summit by how many examples there were from stakeholders actively working on land use challenges within the Corridor of the law working more as an obstacle to progress than as an opportunity or useful tool. These people who do the daily work of trying to make the Corridor a better place seemed incredibly competent and intelligent, but in many cases, they described to me very specific instances where well intentioned laws were getting in the way of actually achieving the desired results (e.g, too much bureaucracy, cumbersome procedures, agency rules that didn't make sense). I heard complaints of the persistent problem of top-down policies and priorities being implemented in ways that are not fully matched up on the ground or that create unintended inefficiencies or obstacles.
This isn’t universally the case. For example, we visited a family farm along the river outside of Omaha where an innovative conservation easement has been created in coordination with the Nebraska Land Trust. The family, at least, said they felt very satisfied that the legal tool of the easement had satisfactorily addressed their concerns in the face of “houses coming over the hills.”
(Photo: Dave Sands, Executive Director of the Nebraska Land Trust, discusses his organization’s conservation easement work within the Corridor at the site of one of these easements.)
However, the theme that there are limits on the ability of the law to respond perfectly or exclusively to the complex land use challenges in the Corridor--including how we will value and protect a range of ecosystem services in the face of growing populations and a changing climate--lingers. Of course, these watershed issues are more complex than one junked property with too many tires in the lawn and more difficult to respond to than the threat of new development around a historic farm that an entire family agrees should be preserved. However, after this summit experience, I look forward to more thinking and engagement around the issues of (1) how law and policy can be better designed with real feedback from, and attention to, the on-the-ground realities of the people working in the trenches and (2) the proper mix of legal and non-legal responses to challenges like the longterm vitality a fragile ecosystem, and especially the role of public participation in designing and implementing these varied solutions.
- Jessica A. Shoemaker
Friday, November 7, 2014
SABIN COLLOQUIUM ON INNOVATIVE ENVIRONMENTAL LAW SCHOLARSHIP Columbia Law School New York, New York May 21-22, 2015
This 3rd Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.
Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions. Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.
The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.
To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to email@example.com by March 1. If an article has already been drafted, please just submit a summary of no more than 15 pages. Footnotes are not expected. Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.
Authors of selected papers will be notified by March 30. All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 21, and all day on May 22) and to read and comment on each others’ proposals. Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.
The senior scholars who will be judging this year's competition and participating in the workshop will be:
Jason Czarnezki -- Pace Law School
Michael Gerrard -- Columbia Law School
Lisa Heinzerling -- Georgetown Law School
J.B. Ruhl -- Vanderbilt Law School
James Salzman -- Duke Law School
Nov 13-14: Idaho Symposium on Energy in the West: Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050
Come and join us for our inaugural energy law conference here at the University of Idaho College of Law, either in the beautiful Wood River Valley or live on the Internet. All times Mountain.
2014 Symposium Topic
Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050
November 13-14, 2014
Sun Valley, Idaho
The symposium will also be broadcast live on the Internet with real-time question-and-answer capabilities. The live broadcast will be freely available here on the day of the conference.
Mark Adams, Dean, University of Idaho College of Law
Barbara Cosens, Professor of Law, University of Idaho College of Law
Stephen R. Miller, Associate Professor, University of Idaho College of Law
Michael Hagood, Director, Program Development, Energy and Environment Science and Technology, Idaho National Laboratory
Energy Infrastructure Choices: Panel I
Embedded Choices, A Resilient Legal Architecture, Sam Kalen, Professor of Law; Co-Director of the Center for Law and Energy Resources in the Rockies, University of Wyoming College of Law
Avoidably Lost: How Changing Flaring Rules May Influence the Expansion of Natural Gas Transportation and Storage Infrastructure in the West, Tara Righetti, Assistant Professor of Law, University of Wyoming College of Law
Energy Infrastructure Choices: Panel II
Wind Scattered Resources, K.K. Duvivier, Professor of Law, University of Denver Sturm College of Law
Unnatural Monopolies: Utilities and the Market for Rooftop Solar, Troy Arthur Rule, Professor of Law, Senior Sustainability Scholar, Global Institute of Sustainability; Faculty Fellow, Center for Law, Science, and Innovation, Arizona State University Sandra Day O’Connor College of Law
Renewables: Can you have too much of a Good Thing?, Donald L. Howell, Chief Legal Counsel, Idaho Public Utilities Commission,
Morning Panel Discussion
The Potential Impacts of Section 111(d)'s Clean Power Plan
Melissa Powers, Associate Professor of Law, Lewis and Clark Law School (remote)
Western Regional Energy Planning: Panel I
Promoting Renewable Energy Development on Public Lands, Nick Lawton, Staff Attorney, Green Energy Institute, Lewis & Clark Law School
The Clean Power Plan: Implications for the Western Grid, Amelia Schlusser, Staff Attorney, Green Energy Institute, Lewis & Clark Law School
Avoiding Transmission Costs through Distributed Generation and Community-Scale Renewable Energy, Kyra Hill, Energy Fellow, Green Energy Institute, Lewis & Clark Law School
'Utility 2.0' Reforms in Hawaii and New York: Implications for the Western Electricity Industry, Nate Larsen, Energy Fellow, Green Energy Institute, Lewis & Clark Law School
Western Regional Energy Planning: Panel II
The Northwest Power System and Regional Power Planning: The Seventh Northwest Conservation and Electric Power Plan, John Fazio, Senior Power Systems Analyst, Northwest Power and Conservation Council
Energy Imbalance Markets and Electricity in the West, David Solan, Assistant Professor, Boise State University Department of Public Policy and Administration; Director, Energy Policy Institute; Associate Director, Center for Advanced Energy Studies
Details on the 2014 Symposium Topic
Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050
This inaugural meeting of the Idaho Symposium on Energy in the Westseeks to provide a forum to investigate the future of basic—but vital—legal questions arising from western U.S. and Canadian energy production. This return to basics is precisely to envision, and re-envision, the long-term infrastructure investments that the dramatic rise in energy production in the west now necessitates. Three baseline questions guide the meeting: What is the market demand for western energy? Where is energy produced in the west? How is energy transmitted and transported in the west? After establishing this baseline in key western energy sectors, speakers will then provide a 2050 vision for each of these baseline questions, as well as a road map for how that future might, or should, be shaped by law and policy. The meeting is also expected to result in the production of short essays on the meeting topic, which will be published in the 2015 Idaho Law Review’s Natural Resources and Environmental Law edition.
Registration and CLEs / MCLEs
Registration for the event costs $95 and includes all meals and materials. The payment can be paid in advance at www.uirsvp.com.
7.5 CLE / MCLE credits are available for in-person attendance by attorneys licensed by the state bars of Idaho; Montana; Nevada; Oregon; Washington; and Wyoming. In addition, attorneys licensed in all of the above states can receive CLE / MCLE credits by watching the conference’s live Internet stream with real-time question-asking features, paying the registration fee, and verifying that the attorney watched the event afterwards. An application is pending for in-person attendance CLEs for attorneys licensed by the Utah State Bar. For more information on watching remotely and receiving CLE / MCLE credits, e-mail Neil Luther at firstname.lastname@example.org.
About the Symposium Series
The Idaho Symposium on Energy in the West is a new collaboration between the University of Idaho, College of Law’s Natural Resources and Environmental Law Program, the Center for Advanced Energy Studies at Idaho National Laboratories (CAES), and the Energy Police Institute at Boise State University. The collaborators intend to hold the Symposium on an annual basis. In the 2014-15 academic year, and every other academic year thereafter, the Symposium be a large, public-facing event suitable for scholars, industry professionals, and practicing lawyers. Continuing legal educations credits will be available both through in-person attendance as well as through an Internet broadcast of the event. In the intervening years, the intention is that the Symposium will convene primarily as a scholars’ event with a goal of providing a collaborative environment to advance law and policy scholarship on energy issues in the western U.S. and Canada. Funding for the Symposium is generously provided by CAES.
Wednesday, November 5, 2014
The Baldy Center for Law & Social Policy here at Buffalo has just opened applications for our fellowship program and a new post doc position. We started this a few years ago and it has been successful (and fun). There are positions for people at different stages of their academic careers:
The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2015-16 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences.
Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.) and are encouraged to develop collaborative research projects with SUNY Buffalo faculty members where appropriate. Those who wish to teach a course to aid their research or gain teaching experience can be accommodated on a case-by-case basis.
Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support. For 2015-16 the Baldy Center also plans to co-sponsor one post-doctoral fellowship focused on the Transnational Business Interactions Frameworkwith York University. Further information on this fellowship is available below.
Mid-Career and Senior Fellowships are available to established scholars who wish to work at the Center, typically during a sabbatical or research leave. Awardees will receive a living expense allowance of $1,500 per month during the period of their residence.
Application materials include:
(1) a description of the planned research (question, conceptual framework, method, possible findings, importance to the field),
(2) a complete academic and professional resume,
(3) an academic writing sample,
(4) the names and contact information of three academic references (no letters yet), and
(5) if a mid-career or senior applicant, the time period during which the applicant would work at the Center. Completed applications are due no later than February 2, 2015. (Apply by clicking the button below). For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Assistant Director Laura Wirth,email@example.com or (716) 645-2581.
Primary criteria for selection include intellectual strength of the proposal, demonstrated academic achievement, and promise of future success. Additional considerations include the overall mix of topics, disciplines, and backgrounds of the selected group of fellows.
For information on current and past Baldy Fellows, see the Baldy Center website.
The Baldy Center for Law & Social Policy is an endowed, internationally recognized institute that advances interdisciplinary research on law, legal institutions, and social policy at the State University of New York at Buffalo. More than 200 faculty members from numerous SUNY Buffalo departments participate in Baldy Center research, conferences, consortia, and publications. The Center maintains cooperative ties to other research centers and hosts distinguished scholars from around the world as visitors, fellows, speakers, and conference participants.
Greetings Loyal Readers
Although Stephen and I haven't been talking about it very much, we are proud members of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. We meet every other year to tackle a thorny environmental problem as a group and to ruminate and strategize on what we as academics can do to ameliorate some of the environmental ills of the world. Our first session was about sustainability in the age of climate change and we the group published a series of essays/blog posts (with essays from Michael Burger, Elizabeth Burleson, Rebecca Bratspies, Robin Kundis Craig, Alexandra Harrington, Keith H. Hirokawa, Sarah Karkoff, Katrina Kuh, Stephen Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon Roesler, & Jonathan Rosenbloom – republished in Rethinking Sustainability to Meet the Climate Change Challenge, 43 Envtl L. Rep. News & Analysis 10342 (2013)) , and we are eagerly awaiting the appearance in print of our ELI published book on the topic.
In July 2014, the group (now comprised of Sarah J. Adams-Schoen, Cinnamon Carlane, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, and David Takacs) met in Jackson Hole, Wyoming, to turn a critical eye to the recent reports of the three working groups of the Intergovernmental Panel on Climate Change (IPCC). On September 27, 2013, the IPCC’s Working Group I released its report, Climate Change 2013: The Physical Science Basis, which concluded, with 95% confidence, that climate change is occurring and humans are causing it. Working Groups II and III followed with their reports in 2014—respectively, Climate Change 2014: Impacts, Adaptation, and Vulnerability and Climate Change 2014: Mitigation of Climate Change. Collectively, these three reports constitute the IPCC’s Fifth Assessment Report (“AR5”).
At the 2014 meeting of the Collaborative, participants used the IPCC’s Fifth Assessment Reports as texts through which to discuss how issues of climate change are presented and, moreover, what is missing from that presentation. In that review, the Collaborative found that not everything was fully accounted for, even in the three massive working group reports. With a particular concentration on the three working group Summaries for Policymakers, the Collaborative decided to use the Fifth Assessment Report as a springboard for discussing the relationship between environmental science, environmental and natural resources law and policy, and the social issues that arise where those two meet.
After the discussion, we all had many ideas about how the empirical claims generated by the IPCC should be translated into normative claims. We explored these ideas by choosing an excerpt from one of the Summaries for Policymakers—each excerpt an empirical claim—and writing a normative response to that claim. We wrote essays memorializing the proceedings of this collaboration and, together, offer a collection of normative lenses that can be held up to the IPCC Fifth Assessment’s empirical claims. We view these essays as jumping off points for deeper discussions and action by the environmental law community and, potentially, even as a way to conceptualize the framework for IPCC’s Sixth Assessment. These essays are appearing at a propitious time because a few days ago, the IPCC released its synthesis report. While our group did not have the benefit of the synthesis report when writing our essays, you'll quickly see that they address pressing concerns that arise with the report and with measures to mitigate andadapte to climate change.
These essays are now appearing on our sister blog: Environmental Law Profs (ELP), with essays appearing throughout the month and wrapping up before Thanksgiving. The essays will be published together in the January 2015 issue of ELR. Instead of simply cross-posting the essays here on Land Use Profs (LUP), each week I will give you the titles and links to the posts on ELP.
For now, you can visit ELP for a fuller introduction to the project and the ELC.
LAND USE PLANNING
Nohad A. Toulan School of Urban Studies and Planning
College of Urban and Public Affairs
Portland State University
The Toulan School of Urban Studies and Planning invites applicants for a tenure-line faculty position. We seek an individual with expertise in land use planning, regional planning, growth management and related fields. Applicants should have a Ph.D. in urban and regional planning or other appropriate disciplines at the time of application or be able to provide assurance of completion of a Ph.D. prior to appointment.
Successful candidates will have a high level of skill, interest, and experience in land use planning, plan making, methods, plan implementation and planning practice. We are especially interested in candidates whose current and/or proposed scholarship includes a focus on state-level land use systems, such as the Oregon Statewide Land Use Planning program. The new faculty member will be expected to play an active role in the development of a new Urban Planning Institute that will lead discussions about emerging and persistent challenges in urban planning in the city, region, and state.
Teaching responsibilities may include conventional, online and hybrid undergraduate and graduate courses. The successful candidate will be expected to advise master and doctoral level students, to pursue an active research agenda and to attract external funding in areas related to land use planning. Candidates with substantial professional experience as planners are strongly encouraged to apply and to describe how that experience informs their scholarship, teaching, and engagement.
The review of applications will begin December 1, 2014, and the position will remain open until filled. Applications should include a c.v. and a letter articulating the applicant’s research, teaching and engagement agenda. Materials should be submitted electronically on the PSU HR website: https://jobs.hrc.pdx.edu/. We prefer PDF files, and filenames should begin with the applicant’s last name (e.g., Bates_application.pdf). Inquiries (but not materials) can be directed to Professor Lisa Bates, Search Committee Chair, at firstname.lastname@example.org.
The Toulan School of Urban Studies and Planning is one of three academic units in the College of Urban and Public Affairs at Portland State University. We offer a B.A./B.S. in Community Development, Master of Urban and Regional Planning, Master in Real Estate Development, Master in Urban Studies and doctorates in Urban Studies and Regional Science, as well as graduate certificates in Transportation, Urban Design and Real Estate Development. Finally, dual degree pathways for students interested in both MURP and either MPH or M. Eng. degrees are available.
Portland State University is a nationally acclaimed leader in community-based learning. The campus is located along the tree-lined South Park Blocks of downtown Portland. The University enjoys close working relationships with state, regional, and local governments, private consultants, and progressive and innovative community-based groups. The Portland region, the state of Oregon, and the Pacific Northwest have received international recognition for their advances in planning and community livability. Planning in and for this region is accessible and transparent to scholars hoping to make substantial contributions to the field through their work.
In keeping with the President’s diversity initiative, we encourage applications from a diverse range of candidates especially those who are excellent at working cross-culturally or with diverse groups (students and publics). We recognize that diversity maximizes our potential for creativity, innovation, educational excellence and outstanding service to the community. Portland State University supports equal opportunity in admissions, education, employment, housing, and use of facilities by prohibiting discrimination in those areas based on age, color, disability, marital status, national origin, race, religion or creed, sex or gender, gender identity or gender expression, sexual orientation, veteran status, or any other basis in law.
Tuesday, November 4, 2014
Thank you for the chance to guest post here on the Land Use Prof Blog. As Jessie mentioned, my current research agenda is focused primarily on the intersection of property law and federal Indian law. I’m actively exploring how the unique property frameworks that have been applied in a top-down fashion to American Indian lands over the years have disproportionately limited the abilities of Indian landowners and tribal governments to make flexible and efficient uses of their own resources and how this, in turn, is negatively impacting the health and vibrancy of many indigenous communities today. I’m really looking forward to sharing more of my work on these American Indian land tenure issues and how this all relates to the broader land use theme of this blog over the next month.
In the meantime, though, I’m also just this week participating in some real boots-to-the-ground land use planning work here in Nebraska that may also be of interest to this group (and that I would love comments and feedback on as we go). As Jessie also mentioned, in addition to my more traditional law professor responsibilities at Nebraska, I get to participate in some outreach-oriented work with an actively expanding university-wide effort here called the Rural Futures Institute ("RFI" or the “Institute”). This Institute, though new, has done some really interesting things in a short time (see, for example, recent grant awards and conference proceedings) and is working to be a local, state, regional, and even global leader “for increasing community capacity as well as the confidence of rural people to address their challenges and opportunities, resulting in resilient and sustainable rural futures.” You can read more about RFI’s official mission, vision, and core values here. In my own words, though, I see the Institute as charting new territory in really re-committing to the University’s original land grant purpose and working to create a two-way bridge between the resources of the University as a powerful teaching and research institution and the resources of rural communities, with their own invaluable local knowledge and expertise about both challenges in need of innovative solutions and opportunities that may be expanded and from which important learning can come. RFI focuses on being as community-driven as possible and defines community success broadly (i.e., not just economic indicators but also looking to other critical elements of community life, such as art, culture, health, education, and longterm security and sustainability).
My own view is that land use—and all the complex factors that influence how individual landowners make decisions about using their land and natural resources—is at the crux of a lot of the issues around how we create positive futures for rural landscapes and rural communities. This week I will be exploring that theme directly as I moderate a plenary panel at the Lower Platte River Summit, an event sponsored biannually by the Lower Platte River Corridor Alliance, on Thursday. The theme this year is “Urban Grown – Rural Resiliency.” I’m looking forward to talking to a variety of experts about balancing growth and sustainability along the Lower Platte, with its unique resource issues and mix of urban and rural places. The panel includes local landowners, a water quality and public health professor, a real estate developer, agricultural producers, and a National Park Service program director who helps communities develop recreational trails in places like the Lower Platte River Corridor. I'm also looking forward to the Summit's afternoon bus tour of real properties along the Corridor that raise interesting land use issues, including a farm with a unique set of conservation easements in place and a small town doing its best to bridge its historical traditions with modern development in light of some encroachment pressure from the Omaha metro.
I expect it will all be fantastic fodder for further work and thought, and I look forward to sharing some observations and reactions to the discussions around land use at the Summit this week. However, I also plan to tell you about one other project that I’ve been doing with RFI and that I’ll be using as a discussion tool and interactive exercise at the Summit: a land use simulation “game” we’ve developed called Plainsopoly. Plainsopoly is experienced truly as a game in which participants engage around a large game board image of a hypothetical landscape and roll dice to answer a series of real-world (but still hypothetical) land use visioning challenges. An interdisciplinary group of students and professors from across the University, including from law, natural resources, applied ecology, business, and agricultural economics, helped me develop this as a discussion tool last year, and we worked in conjunction with a group from Birmingham City University in the United Kingdom to adapt Professor Alister Scott's original idea for this kind of planning game (what they call RUFopoly for its focus on the Rural Urban Fringe (i.e., RUF) space in Europe). So far, I’ve only piloted Plainsopoly for the purpose it will be used again this Thursday: as a discussion facilitator at conference-type events. However, it has gotten very positive feedback for its potential to improve stakeholders’ engagement around land use issues, open civil dialogue, and speed participants’ learning around land use management challenges and opportunities. Like my colleagues in the UK, I'm interested in thinking further about whether this kind of tool may have future applications for conflict resolution, consensus building, or even real-world planning and policy development.
I’ll look forward to telling you more about the Summit and about this Plainsopoly exercise over the next week or so and then also to turning to the Indian land tenure issues later in the month.
- Jessica A. Shoemaker
Land Use in Canada - Where "Extensive and Restrictive Land Use Regulation is the Norm" by Deborah Curran
Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):
These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.
In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.
However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel  A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:
1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and
2. That interest in property must be acquired by the Crown (government).
It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.
In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:
(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from
(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,
(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.
These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City)  1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.
The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen  1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.
Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.
If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.
Sunday, November 2, 2014
Jessica Shoemaker has been on the law faculty at Nebraska since 2012. She has spent a fair amount of time in the Midwest with undergrad at the University of Iowa, law school at the University of Wisconsin, and a Skadden Fellowship for Farmers’ Legal Action Group in Saint Paul. Jessica clerked for the Honorable David M. Ebel on the United States Court of Appeals for the Tenth Circuit and spent five years as an attorney with Arnold & Porter LLP in Denver, Colorado. She has represented Indian tribes, energy developers, entrepreneurs, farmers, and others. She teaches property, Federal Indian Law and a seminar in rural development and energy. Her research focuses on rural land tenure (including Indian land tenure), community economic development, agriculture, and energy. This month, we hope to learn more about land use issues from tribal and rural perspectives. She also works with the University of Nebraska’s new Rural Futures Institute, which perhaps we’ll hear more about this month.