Land Use Prof Blog

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Interdisciplinary Readings on Land Use: Land Ethics

Individual and collective decisions about the use of land are fundamentally normative decisions, whether consciously made on the basis of a set of ethics and norms or reached through governance systems with implicit, imbedded normative underpinnings.  What do ethicists have to say about land use that could be interesting to land use legal scholars?  Quite a lot, it turns out. 

If you have time to read only one book on the topic, I’d highly recommend Timothy Beatley, Ethical Land Use: Principles of Policy and Planning (Johns Hopkins University Press 1994).  When I taught a land use seminar at Chapman University School of Law, I assigned this 300-page paperback book that covers land use from a diverse range of ethical perspectives.  The outline of the book is as follows:

Part I: Ethical Framework

1. Land-Use Policy and Ethical Choices

2. The Nature of Ethical Discourse about Land Use

Part II: Sets of Land-Use Ethics and Obligations

3. Utilitarian and Market Perspectives on Land Use

4. Culpability and the Prevention of Land-Use Harms

5. Land-Use Rights

6. Distributive Obligations in Land Use

7. Ethical Duties to the Environment

8. Land-Use Obligations to Future Generations

Part III: Ethics and Individual Liberties

9. Paternalism and Voluntary Risk-taking

10. Expectations and Promises in Land-Use Policy

11. Private Property, Land-Use Profits, and the Takings Issue

Part IV: Ethics, Community, and Politics

12. Defining Life-Style and Community Character

13. Duties beyond Borders: Interjurisdictional Land-Use Ethics

14. The Ethics of Land-Use Politics

Part V: Conclusions

15. Principles of Ethical Land Use

Of course, many of you were probably expecting me to recommend Aldo Leopold’s writings on his land ethic, which are wonderful and well worth reading.  Leopold urged a holistic view of the land community as encompassing both nature and humans, and a conservation ethic in how land is used and managed.  The classic is Aldo Leopold, A Sand County Almanac And Sketches Here and There (Oxford University Press 1949), but other collections of his writings are also worth reading, including For the Health of the Land (edited by J. Baird Callicott and Eric T. Freyfogle; Island Press 1999), and The River of the Mother of God and Other Essays by Aldo Leopold (edited by Susan L. Flader and J. Baird Callicott; University of Wisconsin Press 1991).  Julianne Lutz Newton wrote an exciting biography of Leopold: Aldo Leopold’s Odyssey: Rediscovering the Author of A Sand County Almanac (Island Press 2006).  Writings by Wendell Berry and Wallace Stegner, discussed in a previous blog post, also articulate a land and environmental conservation ethic.

As many of you know, legal scholar Eric Freyfogle at the University of Illinois has written a number of highly important interdisciplinary books that integrate land ethics (including the writings of Leopold, Berry, historian Donald Worster, and others) with legal issues.  My favorite remains Bounded People, Boundless Land: Envisioning a New Land Ethic (Island Press 1998), which is unusually articulate, inspiring, and engaging.  Eric has commented on several occasions that he considers some of his later works his best writing, and all are certainly excellent and well worth reading.  Among them are: The Land We Share: Private Property and the Common Good (Island Press 2003), Why Conservation Is Failing and How It Can Regain Ground (Yale University Press 2006), and On Private Property: Finding Common Ground on the Ownership of Land (Beacon Press 2007).  Still, I stick by my special regard for his Bounded People, Boundless Land book.

J. Baird Callicott is a philosopher who has built on Leopold and yet gone beyond Leopold’s perspective with a strongly non-anthropocentric viewpoint.  His books are well worth reading, including In Defense of the Land Ethic (State University of New York Press 1989) and Beyond the Land Ethic: More Essays in Environmental Philosophy (State University of New York Press 1999).  Three other environmental ethics classics with relevance to land use are Holmes Rolston III, Environmental Ethics: Duties to and Values in the Natural World (Temple University Press 1988), Bryan G. Norton, Toward Unity among Environmentalists (Oxford University Press 1991), and Laura Westra, An Environmental Proposal for Ethics: The Principle of Integrity (Rowman & Littlefield 1994). 

Despite the trenchant critique and normative guidance found in many writings on land ethics and conservation philosophies, the reality is that the land use system in the United States is characterized by pragmatism and ethical pluralisms at best.  I discussed this point in my article The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305.  Nonetheless, important ethical imperatives can be found in pragmatic perspectives on land use, as explored in an outstanding book by Ben A. Minteer: The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006).  Minteer examines the ideas of four major land-and-environment thinkers and reformers in the American 20^th Century – Liberty Hyde Bailey, Lewis Mumford, Benton MacKaye, and Aldo Leopold – to illuminate an environmental pragmatism focused more on civic and policy reform than on picking sides in the anthropocentric/land-use versus ecocentric/environmental-preservation debates.  I highly recommend this informative and well-written book. 

By now (if you made it this far!), you’ve probably noticed that most of these writings involve environmental ethics and don’t really delve too much into social justice, distributive justice, procedural justice, and the like.  I will tackle some of those issues, albeit mostly at the land use-environment intersection, in my next post on interdisciplinary readings in environmental justice and land use. 

Coming Next: Environmental Justice and Land Use

 

 

Kornfeld on Israeli land policies and the Bedouins

Hello all:

Initially, I’d like to thank Stephen Miller and Jessie Owley for the privilege of allowing me to be a guest blogger.  I hope that my posts will be both informative and thought provoking.  

Thanks, Itzchak Kornfeld

In this, my first post, I will address a real property issue that is pitting the Government of Israel against its Bedouin minority.

280,000 Bedouin live in Israel. Of these, 90,000 live in the Negev Desert in the country’s south.  See Map Below.  This community lives in the general area of Be’er Sheba, which we in Israel consider the capital of the Negev.  The government is seeking to evict the Negev Bedouin from their ancestral lands.  Its reason: the State of Israel considers them to be living in unauthorized villages or locations and accordingly sees them as squatters.   I will address why the government has taken on this position in a subsequent post.  Today I will introduce the history of the Bedouin and an initial discussion of the Land Law of 1949.

• Full disclosure, I work and have worked with the Bedouin and against the government.

 

 

 The Negev (or Southern) Desert, Israel

 

 

TheZin Wilderness in the Middle Negev, Israel

 

Juniper Tree in the Negev adjacent to the Large Crater (of Makhtesh HaGadol in Hebrew)

One fact that is likely well known but may not be fully acknowledged is that Europeans, in almost every venue that they’ve settled, e.g., the U.S. and Canada, have taken by force lands that belonged to indigenous populations.  Indeed, examples abound across the face of the planet, e.g., American Indians, the First Nations of Canada, the Bedouin of the Middle East, the Berbers of North Africa’s Maghreb, and the Walmatjarra of Australia, among others.  Prior to being dispossessed and placed on reservations of one sort or another, these peoples flourished and were one with nature. 

Of course, being one with nature is not one of the virtues of most European colonialists and their progeny.  They conquer, reclaim and put land to “beneficial uses”.  In this vein, private property rights theorists would argue that the bundle of rights, regardless of whether the land was appropriated by force, must be seen as a feature of an economic good. This economic paradigm requires use of the land; income generation from the land; the right to transfer the asset; and the right to enforce their property rights.  But, how are aboriginal peoples supposed to gain the bundle of rights if they are dispossessed from their ancestral lands?  This situation of course sets up a conflict between the two sides.

Indeed, the Bedouins in the Negev are in conflict with the European-based government of Israel.  First, who are the Bedouin?  They are an Arabic speaking seminomadic group that is descended from nomads who for at least  thousand years inhabited the deserts of the Middle East, mainly from Syria in the north to North Africa in the south, and for our purposes, resided in Israel pre -1948, the date of the State’s founding.

 The Bedouin also continue to reside within the boundaries of the State of Israel, and unlike the Palestinian or Arabs who also live in Israel proper the Bedouin serve in Israel’s military (the “IDF”).  Service in the military is very important for Jewish Israelis however, the Bedouin do not receive the benefits that Jewish soldiers receive upon being released from their term of service.

 

 

 

 

 

 

Bedouin Man wearing IDF Jacket

 

 How the Bedouin Live Today, when Not Afforded Government Services

                

                Notably, the Bedouin have been fighting for the right to the lands that they and their ancestors occupied since the founding of the State of Israel.  Moreover, they cannot undertake their semi-nomadic lifestyle since the borders of Egypt, Jordan, Lebanon and Syria are closed to them as a consequence of their Israeli citizenship.  The Negev Bedouin have thus been forced to give up their thousand year legacy of being nomads.

Israel’s Land Policies

Since its founding in 1948, the Israeli government has held title to all but 7 percent of land within the country’s borders.  The latter is held by deed, generally predating the formation of the Government of Israel.   The government’s real property interests are transferred to it from the independent Jewish National Fund (“JNF”).  The JNF was established in Basel, Switzerland, in 1901, solely to purchase land from Arabs, the Ottoman Turks, Jews, and other land holders, within the bounds of what today is Israel.

 In enacting the Israel Land Law of 1969, as amended, the Knesset (Parliament) sought to eliminate the majority of the Ottoman Turkish law of 1274.  That, in fact, did not occur.  However, Knesset members thought long and hard about the adoption of the British common law property system, if for no other reason, because it was extant and had been working for some 30 years.  Moreover, Hebraic or Jewish property law, as enunciated in the Bible and the Talmud, was also engrafted onto the 1969 law. Thus today, real property law in Israel is a combination of the three.  That legal sausage is now the law of the land.

A Twist in the Law

            A personal story  may be of interest: In 1937, my father’s aunt purchased a parcel of property in Ramat HaSharon, an upper income city, north of Tel Aviv, where today most of the IDF’s generals reside.  She was one of 18 parcel holders.  When Aunt Sara passed away my father inherited the plot, and subsequent to his death, I inherited it.  The other owners and I  sought to develop all 18 parcels (4.5 acres), however, we cannot due to an artifact of Ottoman law.  That legal relic states that if A is growing any fruits or vegetable on B’s land, as a lessee, the lease cannot be terminated by B until A decides not to grow crops.  In our situation, my father’s aunt Sara purchased the property following A’s agricultural undertaking.  He grew tomatoes, and his heirs continue to do so.  Thus, three generations of my family are legally bound not to evict the farmers from our land.  One bright spot is  that we as owners we do not have to pay real estate taxes, s long as the property remains agricultural.  

Go Figure!!

Fennell and Peñalver on Exactions Creep

For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming).   Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision.  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Jim K.

Agglomerama--Fennell on Cities' Participant Assembly Problem

Lee Fennell (Chicago) has posted Agglomerama, __ BYU L. Rev __ (forthcoming).  In it, she examines how cities attract the right mix of residents and businesses to maximize social value.  She takes a look at a number of possible ways in which cities might incentivize and manage positive spillover effects, including a proposal by Gideon Parchomovsky and Peter Sieglman to emulate shopping mall developer coordination between anchor and satellite tenants, which proposal can be found in their Cities, Property and Positive Externalities, 54 Wm.  & Mary L.Rev. 211 (2012).  Here's the abstract for the Fennell piece:

Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.

Jim K. 

Addressing American Indian Land Tenure – by Jessica A. Shoemaker

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

Liveblogging ALPS 2014

Well it is that time of the year again and most of the Land Use Profs' crew is attending the Annual Meeting of the Association of Law, Property, and Society. This year, the conference is in Vancouver, B.C. and I have to say this is the prettiest location for ALPS so far.

I spoke on a riveting panel on conservation easements this morning (shocker I know) and now get to sit back and listen to co-blogger Jim Kelly's talk: “‘That Side was made for you and me’: Unauthorized Use of Vacant Property in Inner City Neighbourhoods.” In this packed room, I enjoy the fact that Jim started with a song. His presentation discussed what might be categorized as a type of self-help improvement. Here is the official abstract:

This essay explores the social function of unauthorized uses of vacant properties, both houses and lots, in inner-city neighborhoods. Underutilized properties, particularly those abandoned by their owners, present obvious opportunities for non-owners to engage in uses that may not benefit them personally and/or may (or may not) confer social benefits. From squatters and scrappers to guerilla gardeners and anti-foreclosure activists, acquisitive and expressive “property outlaws” challenge the formality and durability of land ownership claims. By looking at contemporary phenomena such as Philadelphia Green, Take Back the Land, and Indiana’s Good Samaritan Law, the essay will sort out the constructive possibilities for supporting, ignoring and actively opposing unauthorized use of vacant inner-city properties.

The panel, which focused on violence and authorized/unauthorized uses of property. I particularly enjoyed Robin Hickey's paper about whether you can take back property that others have taken from you (in fancy terms: the right to recapture). I think my property law students would be most intrigued by Abraham Bell's talk about possession (they always want to talk about the phrase "possession is nine-tenths of the law").

 

Dyal-Chand on Sharing the Cathedral

Rashmi Dyal-Chand (Northeastern) has posted Sharing the Cathedral, 46 Conn. L. Rev. 647 (2013).  Here's the abstract:

Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law.

Jim K.

 

Alexander on Property's Ends

Greg Alexander (Cornell) has posted Property's Ends: The Publicness of Private Law Values, 99 Iowa L. Rev. 1257 (2014).  Here's the abstract:

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political.  A consequence of this conception of the human condition is that the values of which human flourishing is constitutive ― property’s ends― are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent.

Jim K.

Farber on Property Rights and Climate Change

Daniel Farber (UC Berkeley) has posted Property Rights and Climate Change, his Wolf Family Lecture on American Law presented just last month at the University of Florida.  Here's the abstract:

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.

A web video of the Lecture is available here.

Jim K.

Festa on Property and Republicanism in the Northwest Ordinance

Our own Matt Festa (South Texas) has posted his new article, Property and Republicanism in the Northwest Ordinance, 45 Ariz. St. L. J. 409 (2014).  Here's the abstract:

Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

Jim K.

Bray on Progressive Property and Low-Income Housing

Zachary Bray (University of Houston) has posted The New Progressive Property and the Low-Income Housing Conflict, BYU Law Review, Volume 2012, Issue 4, p. 1109 (2012).  The abstract:

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, I focus on two potential examples of this theoretical approach related to low-income housing: the federal Section 8 housing voucher program and local rent-control ordinances. I argue that Section 8 is a better example than rent control of the new progressive-property approach, even though rent control has previously been identified as a practical example of the new progressive property and Section 8 has not.

I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.

 

Very interesting, and an an original contribution in comparing two different facets of housing policy in the context of the larger theoretical discussion of progressive property.

 

Matt Festa

Dagan on Justifications for Undercompensation in Eminent Domain

Hanoch Dagan (Tel Aviv) has posted his anthology entry entitled Expropriatory Compensation, Distributive Justice and the Rule of Law in Rethinking Public Interest in Expropriation Law (Mostert & Verstaapen eds., forthcoming 2014).  Here's the abstract:

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries.  A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear. 

Jim K.

Fennell and Peñalver on Exactions Creep

Lee Fennell (Chicago)  and Eduardo Peñalver (Chicago) have posted Exactions Creep, 2013 Sup. Ct. Rev. ___ (forthcoming).  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

 

Jim K.

Fennell on Lee's Eminent Domain as Just Undercompensation

Lee Fennell (Chicago) critiques and enhances Brian Lee's Columbia Law review article entitled Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, blogged about here earlier this summer.  In her concise on-line response, Just Enough, 133 Colum. L. Rev. Sidebar 109 (2013) (pdf here), Fennell moves through the positive and normative aspects of the tripartite analysis of how Fair Market Value (FMV) purportedly fails to fully compensate property owners whose interests are liquidated through eminent domain proceedings.  As she lays it out in her intro:

Like other scholars, I have previously observed that the FMV measure of compensation leaves an increment of value uncompensated:

The uncompensated increment is made up of three distinct components: (1) the increment by which the property owner’s subjective value exceeds fair market value; (2) the chance of reaping a surplus from trade (that is, of obtaining an amount larger than one’s own true subjective valuation); and (3) the autonomy of choosing for oneself when to sell.

Lee argues that appropriate amounts of both subjective value and the chance of gains from trade are included in FMV, leaving only interference with autonomy categorically uncompensated in a manner that would implicate fairness concerns. This Part focuses only on the positive question of what does and does not get included in FMV, leaving the normative questions to the next Part. Part I.A considers subjective value and Part I.B turns to the last two components of the “uncompensated increment.”

Even after demonstrating, contra Lee, that existing owners' subjective attachments are not necessarily baked in to market valuations, she helps out by showing that a prevalence of rooted homeowners together with zoning-induced supply contraints might support the kind of extended sellers' market that diminishes the difference between market prices and the reservation prices of most homeowners. 

Jim  K.

 

Singer's Keynote on Property, Poverty and Immigration in a Free and Democratic Society

I hope many of you attended the AALS Workshop on Property, Poverty and Immigration this past summer in San Diego.  For those of us who couldn't (or did, but just weren't taking copious notes), the keynote speaker, Joseph William Singer (Harvard), has posted his talk entitled Titles of Nobility: Property, Poverty, and Immigration in a Free and Democratic Society.  Here's the abstract:

Both property and immigration are premised on exclusion yet both human rights and democratic norms require us to treat every human being with equal concern and respect. While neither sovereigns nor owners can have completely open borders, they have obligations to respect the human dignity of "the stranger." Biblical sources link the stranger with the poor and develop a version of the Golden Rule that requires both to be accorded "love." The related secular principle of equal concern and respect means that poverty is, in principle, incompatible with the norms of a free and democratic society. That principle is embodied in the constitutional prohibition on titles of nobility which mandates treating every human being as of equal value and importance. While the nobility clauses do not mandate particular policies, they do outlaw treatment that places some as occupying a lower status than others.This has consequences for both immigration and property law, as well as laws and policies designed to alleviate and prevent poverty.

Jim K.

Echeverria's Take on Koontz

John Echeverria (Vermont) has just this week posted Koontz:  The Very Worst Takings Decision Ever?.  In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level.  Here's the abstract:

This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis.  Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community.  Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review. 

Jim K.

Dagan on Property Theory, Essential Resources, and the Global Land Rush

Hanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush.  The abstract:

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

Looks like another must-read for property theorists!

Matt Festa

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

Freyfogle on Private Ownership and Human Flourishing

Eric Freyfogle (Illinois) visited in South Africa last fall as a fellow in the Stellenbosch Institute for Advanced Study.  During that time, he began work on his recently posted essay, Private Ownership and Human Flourishing:  A Critical Review.  A number of us Land Use Prof bloggers had the opportunity to hear Eric present this interesting work this Spring at the Association for Law, Property and Society conference at the University of Minnesota.  Here's the abstract:

This essay surveys the many, contradictory links between private ownership and human flourishing and assesses the moral implications of this complexity. It begins with and ultimately broadens claims made by leading South African scholars on the need to reconsider longstanding ways of thinking about property, particularly the “rights paradigm.” Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are far greater, implicating not just owners but neighbors, surrounding communities, the landless, future generations, and other life forms. The recognition of private property rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going far beyond physical needs. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power — this use of state power to help owners control and dominate others — rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with any power that does not, on balance, promote widespread human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property’s origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximize its social benefits.

Jim K.