Wednesday, April 13, 2016
The map above shows one year of wanderings for a famous grizzly bear known as "The Boss." The majority of his travels occurred in busy transportation corridors, including the famous Bow River Valley between Banff and Lake Louise, which contains a railroad, the two-lane Bow Valley Parkway, and the four-lane Trans-Canada Highway (his story is available here). He has managed his travels rather well, managing to avoid accident save for one encounter with a train. Which he survived, of course, because he's the Boss.
Because most of my students will end up working in small towns (and I include Boise as a "small town"), I like to spend time on those aspects of land use and property law that are relevant to life on the wildland-urban interface. In the western United States, these conversations generally focus on wildfire, but there are also significant effects on wildlife. Unfortunately, I have found that while people (including both law students and land owners) generally understand the significance of fire in the wildland-urban interface, they don't react with the same openness to land-use regulations designed to protect wildlife. I like to use the land-use regime of Teton County, Wyoming in my land use class, both because it is a beautiful place many of my students are familiar with, and because it has an impressive array of provisions designed to protect wildlife, from the obvious grizzly bears and bald eagles to cutthroat trout and mule deer. Among other things, the regulations contain standards for wildlife-friendly fencing, define ten different vegetative cover types with different levels of protection, protect migration corridors, and contain requirements for bird feeder placement so as to avoid unwanted interactions with bears.
But it is surprising that in a place where many of my students hunt, fish, hike, and spend a lot of time outdoors, there are often some rather negative reactions to these requirements. These are students who love wild places--I once had a student from a very small town in eastern Oregon describe to me an experience out hunting when he was briefly surrounded by a howling wolf pack; he unashamedly said it was one of the most beautiful experiences of his life. But many of these students (reflecting the broader public) still find regulating the bird feeder, or protecting presently unoccupied migration routes, to be questionable legally, and a violation of their property rights. Apparently, loving wild places and understanding wild places, at least how the law might interact with those places, are two different things.
It is one of the contradictions of the legal (or any) profession that we are proud to claim, and are jealous of, a specialized expertise, while we simultaneously complain about the layperson's lack of legal knowledge. But the greatest failing of the law is not that the layperson doesn't understand it, but rather that the judge, lawyer, and law professor don't understand the rest of the world. We just covered Rapanos v. United States in Environmental Law. While it is likely easy to find lawyers and law professors who will commend the legal reasoning of the plurality opinion, it would be difficult to find the same level of respect among hydrologists or ecologists. Those people who know and study the "waters of the United States" likely would tell you that the plurality opinion demonstrates a fundamental lack of understanding about how the world works.
The Boss's wanderings around Canada's highways reminded me of my own neighborhood. A few weeks ago, just as I was about to turn the corner to walk down my street, my wife called with a warning to be careful. It wasn't that she had heard reports of a prowler in the neighborhood, at least not the typical kind. As we were talking, I turned the corner to see two moose happily browsing on the tree in my neighbor's front yard. Although we live in the middle of suburbia--at least the Moscow, Idaho form of suburbia--this is not a rare occurrence. We have had moose in our yard several times, including one young moose who spent a couple of days sitting under a tree in our front yard happily snacking on our bird feeder. Once a year or so, the University sends out the always humorous "Moose on Campus!" alert. We're at the point where we almost don't take notice--a few years ago we asked my son if anything exciting had happened at school. "Not really" he responded. Didn't a moose walk right through your playground, while you where there? "Oh.... Yeah." Those moose are part of our neighborhood, our place, and thus our law, whether we recognize it or not.
Assessing the appropriateness of law, whether it be wetland regulation or bird feeder placement, requires moving beyond the canons of construction, IRAC, and the "thinking like a lawyer" that so stresses 1Ls each fall. It requires thinking about how moose might travel across a landscape, connecting wetland function to downstream water quality, and understanding the interactions of bears, highways, and bird feeders. Lawyers who work in property, land use, and natural resources law should look at that map of The Boss's wanderings and immediately think about how law and the bear might interact, and how the law we craft for the future should understand, intricately, the lands and places it emerges from.