PropertyProf Blog

Maps of the day: the new winter

I just came back inside from helping dig my neighbor's car out of the snow pile in front of his house. The last two weeks have provided two snow days for the local school district--one because of too much snow, and yesterday because of too much melting snow. And Boise, which isn't particularly used to significant snow fall, 300 miles to the south of my home in North Idaho, has experienced six snow days of its own.

These are the types of conditions that often cause the cynical to say, "I could use some of that climate change right now."

But for parts of the West, this apparent bounty of snow hides one of the most significant changes will we face in a climate-altered future.

These maps reflect current data from the NRCS SNOTEL sites across Idaho, which measure precipitation and snow pack, and help predict water availability for the coming year. The first is how much total precipitation has fallen in the current water year (since Oct. 1) as a percent of 1981-2010 median. That map shows well above normal amounts of precipitation. 

But the real story is in the second map, which shows snow water equivalent in the current snow pack. This is a more useful measure of water availability, since is reflects the amount of water stored in our snow pack reservoirs--water that will be available next summer as the snow pack melts. That map tells a different story, with most of North Idaho well below normal, notwithstanding the piles of snow in our front yards. Much of that above average precipitation fell in the early winter as rain, and has already made its way downstream to the ocean.

In the lower elevation mountains of the Pacific Northwest, climate change will raise snow levels, bring more rain and less snow, and shift the peak of the hydrograph to earlier in the year.  The snow reservoirs will hold less water, and less water will be available everyone: farmers, cities, hydroelectric dams, and anadromous fish. 

And as these maps demonstrate, we are seeing those effects today. More rain, less snow, and a less predictable water future.

Beauty, Healing, and Forty Years on the Selway

   
 Storytime by the fire -- photo by Brant Miller

    Although my body is in desperate need of some reasoning skills, my brain is several hundred miles away, thinking about a criminal trial in Portland, Oregon. In that Oregon courtroom, seven people face the consequences of their forty-day occupation of the Malheur Wildlife Refuge. Their primary complaint was that the federal government lacks the authority to own or manage the nation’s public lands, and that those lands should instead be transferred to local governments or private interests. It is not entirely inappropriate for me to be thinking about the Malheur trial, as I am sitting in an inflatable kayak on Idaho’s Selway River in the Selway-Bitterroot Wilderness, trying to navigate a series of rocky rapids that are well beyond my limited paddling skills. But my thoughts are in Portland because the arguments of the Malheur militants threaten what I am now trying to experience, and I fear that we are collectively forgetting about the value of wild and lonely places, and thus unnecessarily risking the future of our public lands.

    When he signed the Wild and Scenic Rivers Act in 1968, President Johnson noted that although we had been slow to learn how “to prize and protect God’s precious gifts,” we had finally recognized the value of wild and natural places, and ensured that “our own children and grandchildren will come to know and come to love the great forests and the wild rivers that we have protected and left to them.” The Selway is one of those places, one of eight river systems originally protected by the Wild and Scenic Rivers Act.

    For a few moments, my brain returns from its Portland wanderings and allows me to focus on the place and experience that cradles me. At its September low-water clarity, I can pick out individual granitic crystals as I watch the cutthroat swim between the rocks twenty feet below my boat. The canyon walls are from two different worlds, with dry, open Ponderosa pine forests on the south-facing slopes opposite dense cedars and ferns on the north-facing—the desert and rainforest connected by waters they imperfectly share. We paddle through boulders with driftwood logs four feet in diameter balanced a dozen feet above the water’s surface, hinting of demons that must lurk these waters in other seasons. And in the interludes between the hoots and hollers of the rapids, we find ourselves quietly transfixed by our surroundings, unable to find any words except the occasional and reverential, “this is so cool.”

    Although the rapids and deep pools, cliff walls and cedar trees, and hundreds of friendly trout demand my attention, I continue to return to that Portland court room. While the specific arguments presented there are not likely to succeed in the policy realm, they are but the extreme end of a real problem. Because although the Bundys and their followers do not represent Western values, nor the desires of an overwhelming majority of the people who regularly work on, recreate in, and know and love the public lands, there are a number of no less frightening proposals cloaked in more reasonable-looking raiment seeking the same ends. Idaho’s U.S. Representative Raul Labrador continues to push a bill—against the wishes of many of his constituents—that would transfer large portions of Idaho’s public lands to a cash-strapped and industry-captured legislature. The Republican Party’s platform calls for Congress to “immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” And the state of Utah is spending millions of taxpayer dollars preparing a lawsuit to challenge the authority of the federal government to own and manage any of the public lands.

    This is why, despite somewhat more pressing needs, and being surrounded by one of the Earth’s most pristine landscapes, I can’t get my brain out of Portland.

    But still the river draws me in. Even if unknown to many, the Selway represents a quintessential Idaho—and public lands—experience. Although the backcountry airstrip that marked the beginning of the river stretch of our adventure already had three airplanes on the ground when we landed, and two of our pilots left immediately to return with a group of bear hunters from Norway, we were soon alone on the river and would see no other people for days.

    We are eight good friends, both old and new, here to celebrate forty years of a good life. A couple of professors, five employee-owners of the local whitewater products company, and a Sacramento police officer happily ignoring our stories of youthful, and not so youthful, indiscretions, we all share a love of wild places even as we express it in different ways. Like any other group of men our age, we carry our skeletons—our bouts with depression and alcohol, our fears and inadequacies, and our hopes that the children we are raising and worlds we are creating turn out better than we did. So we are here in celebration, but also for healing, for temporary escape, and in search of memories of beauty to carry us through our ugly times. Each night as we sit around the campfire, alone in hundreds of miles of forest with our own private river, living an experience that will forever connect us and this place, I can feel the scars soften, and the residual angers and fears fade and flow down into the river, which carries them away.

    Unfortunately, this one crucial thing gets lost in the chaos of the Bundys and Malheur, and Utah’s New Orleans lawyers polishing off discredited legal arguments—the power of the land. Their focus on federalism, State’s rights, obscure and perhaps misinterpreted Constitutional provisions, and willful ignorance of Supreme Court precedent takes us away from the qualities that most and best connect people to the public lands and wild rivers.

    The public lands are not a mere legal construct, nor are they simply a resource to be extracted and commodified. At their best, they are personal, emotional, and subtly primeval, connecting us to a wildness and beauty that can quiet and calm us, and dissolve the scar tissue of ancient wounds—real and imagined, physical and emotional. The August crowd at Old Faithful in Yellowstone—or even the hundreds of more obscure public lands recreation sites across the West and country—speaks, with some irony, to a need for wild, natural, and lonely places. And although not all of us can fly a small plane into the Selway’s backcountry airstrips, or even visit Yellowstone, America’s public lands landscape extends throughout the interstices of Western life. Even the West’s largest cities are only short journeys from quiet mountain streams, lonely forests, or empty sagebrush prairies. For many people, these small spaces are a Yellowstone or Yosemite, places of refuge in a complicated life. And they are public spaces, inherently democratic, welcoming anyone seeking peace, solitude, adventure, beauty, or wisdom.

    So it is this that is most troubling about Malheur, the Bundys, Utah’s legislature, and Representative Labrador. As Wallace Stegner argued, the West is the native home of hope. Much more than angry, scofflaw ranchers, industrial timber harvesting, or massive dams, the West is about wildness, loneliness, adventure, freedom to explore and be reborn, and space to reconnect with our own wildness. Our public lands and wild rivers can be healing, unifying spaces, both individually and collectively. They are not elitist spaces reserved for the few or the favored; they are spaces for everyone to find their own beauty.

    Eventually, all adventures must end, and I do manage to focus enough on the water in front of me to safely arrive at our take out, and the fried chicken and cold beer that is waiting for us there. In the last slow miles on our final day, as we quietly paddle the deep pools and easy rapids, I find myself consistently turning to face upstream. I do so not just because I do not want this trip to end, but because I fear for what I’m leaving behind. In enacting the Wilderness Act, we chose, collectively, to secure forever “the benefits of an enduring resource of wilderness.” And with the Wild and Scenic Rivers Act, we determined that some rivers should remain always in their natural, free-flowing, and wild condition.

    Just as we once made that collective choice to protect the wild and natural, and to preserve beautiful landscapes of all types, we are also capable of making the alternative choice: to prefer use over solitude, dams over rapids, timber harvests over wildlife habitat, private benefits over public spaces, the tame over the wild.

    But I believe we remain better than that. We remain capable of understanding beauty. More important, we remain capable of deserving beauty.

    If we care about ensuring future generations the same wildness we have enjoyed, our path cannot be to ridicule the Bundys, to trust that Labrador’s bill will not get past the Senate or President, or to believe that the Supreme Court will honor precedent in any Utah lawsuit seeking control of the public lands. It was not legal argument that first gave us National Parks and Wilderness, protected free-flowing rivers, or reserved our forests for future generations. It was instead the stories of adventure, the paintings and photographs carried thousands of miles back to Congress, and the willingness to recognize the spiritual as well as the commercial. It was the green fire, and the power of wild rivers and wild landscapes. So our path must be to remember the value of wildness, to tell our stories, show our photos, and share our experiences, to be willing to talk about beauty and healing and grace, to share our special places with our neighbors, and to love our public lands. It is time for the prophets and evangelists to return, for the storytellers to again climb the trees and ride the whirlwind, and for us all to love and live the wild again.

#LouisianaFlood: Property Law and Consumer Protection After a Natural Disaster

(Photo Credit: The Millennium Report)

As national news is just getting around to reporting, Baton Rouge and its surrounding areas recently experienced tremendous flooding. Large portions of southeast Louisiana were (and many remain) underwater. Our tax law friends over at the Surly SubGroup, specifically Phil Hackney (LSU), summarize the situation nicely:

The devastation stretches from around the Louisiana-Mississippi border all the way over to Lafayette -maybe 100 miles across. This story does a nice job explaining the weather phenomenon that caused this massive flood event. Neighborhoods that have never flooded before in our recorded history are under 4 -6 ft. of water, and some higher than that. Almost the entirety of certain cities are submerged. The last data I had for my area is that 20,000 were displaced and 10,000 in shelters. I expect that number to go up over the week. Even though it has stopped raining, the flood waters cannot drain because the rivers are too high and cannot take runnoff from tributaries.

For those who may find this helpful, this short post talks a little about the property law (specifically related to home mortgage obligations and homeowners’ insurance) that victims of natural disasters like the Louisiana flooding should keep in mind.

MORTGAGE LOAN OBLIGATIONS

After a disaster like the flooding in Louisiana it is important to get in touch with your bank or mortgage servicer to obtain relief. The reason for this is because even if your property is destroyed and/or you can no longer live in the home, the mortgage debt does not go away. It is still owed even if the improvements on the real estate are not longer habitable. If contacted, however, sometimes the mortgage company will give you more time to pay your monthly note and even dispense with late fees or penalties. Also, if the home has been lost due to substantial or total destruction, you’ll want to talk to your mortgage servicer ASAP to prevent or postpone foreclosure on the property. For private loans (i.e., not government-backed) it will be up to the lender and you to work out those details. Be aware that even if the lender gives you a forbearance for a period of time, you will still have to make up those payments later.

For those loans that are FHA-backed, borrowers are sometimes eligible for resources that allow them to remain in the home. The FHA has a disaster relief policy pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act where, if (1) you or your family live in a federally-declared disaster area; (2) you are a household member of someone who is deceased, missing, or hurt because of the disaster; or (3) your ability to pay your mortgage is significantly impacted by the disaster, then your lender cannot foreclose on its mortgage for a 90-day period. The FHA also strongly advises its participating lenders to work with mortgagees who are affected by natural disasters (for example, by taking a deed in lieu of foreclosure if appropriate or allowing only partial payment for a period of time). This is why it’s so important that homeowners in these flooded areas contact their mortgage servicers and let them know that they qualify for FHA Disaster Relief. For additional help in this process, HUD has a counseling hotline to call at 1-800-569-4287 or you can contact HUD's National Servicing Center.

PROPERTY INSURANCE

With regard to property insurance, dealing with your insurer can be a long and complicated process after a natural disaster. The important part is knowing what your declaration and your policy states, and whether flood insurance is included (i.e., for damage caused from rising waters). A general homeowner’s policy only covers damage caused by wind, rain, hail etc. Flood damage is insured separately. The exclusions portion of the policy will help in making this determination.

When it comes to actually getting money for lost or damaged property, different insurance policies take different approaches. You can either obtain the replacement cost value of the property (which means the insurance company will give you funds necessary to substitute the damaged or lost property with comparable property) or actual cash value (which is where you receive the cash value of the property that was lost or damaged, minus depreciation over time). The insurance policy will reveal to which you are entitled.

In the case of personal property losses specifically, this is generally referred to as the insurance of “contents” of the home. Documenting these losses are particularly important (so don’t start throwing things away too quickly). Keeping receipts are also critical to submitting a successful claim.

Another important aspect of property insurance is the fact that you are not the only person insured. Your mortgage bank is also listed as an insured on your policy, which means that when the insurance company send the check the bank will also be listed as a payee. Usually your residential mortgage contract requires that you send the check to the bank and then, through an escrow and release process, the funds will be distributed to you to pay contractors to repair the home in tranches. This means that you and your mortgage bank will have to work together to get the repairs completed and your contractors paid. Another option can be to actually pay off the mortgage debt altogether (if there’s a sufficient amount), but that is a decision that the mortgage lender gets to make. As a homeowner you should try to find out how the mortgage lender will use the insurance proceeds because if the mortgage debt is paid off that leaves you with no money to make repairs to your home.

Grizzly Bears, Bird Feeders, and the Law

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.

Law in Place: The need for an outdoor legal education

(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)

A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.

The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.

In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.

I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.

But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.

Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.

Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.

But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.

The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.

Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.

This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.

The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.

All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.

And when you know the trees.

Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.

Public Rights in the Private Western Landscape

This past weekend, weather and stream flows cooperated enough that I could justify spending a day chasing steelhead. The high winter flows do challenge my already limited angling skills, so I spent the day searching for any kind of structure or rocks that could make the river smaller and more approachable—at least from a fly fishing perspective—and give me a slightly greater than zero chance of finding a fish. I finally found what I was looking for, immediately behind a sign declaring “Private Property.”

Two characteristics largely define the Interior West—public lands and aridity. This combination makes for some complicated land use conflicts. In an arid environment, both people and animals congregate on the same land—land near water—and the public lands landscape affects our ability to disperse by limiting land available for human settlement. Thus, despite the millions of acres of public lands in the West, much of the land use conflict occurs not on public lands but within the private landscape where we congregate.

Private western lands are private precisely because they were the most productive or attractive, and in many ways they provide the best wildlife habitat or ecological services. In some cases, they also provide the best recreational opportunities. While the public’s perception of the Interior West might focus on federal lands issues, the private lands are an increasingly significant source of both conflict and opportunity.

And lost in the stories of the West’s public lands are the thousands of examples of private landowners not only protecting or restoring their land, but also allowing the public to hunt, fish, and recreate on private property.

In the past year, while wandering around Idaho, I have squeezed through gates, walked across farm fields, followed “secret” trails below cabins, and parked along private logging roads. In each case, I was crossing or using private property to find places to fish. And in each case, I was doing so with permission of the private landowner. The two photos at the top of this essay were taken on neighboring parcels near a small stream just southwest of Yellowstone National Park—I respected the requests of both and enjoyed a memorable day of fishing with my brother. I have also spent literally hundreds of hours running, hiking, and mountain biking on publicly-accessible private forest lands near Moscow, Idaho.

In one sense, surprisingly, this notion of public “rights” in private places is embedded within western culture. The state of Montana guarantees all residents the right to use any stream that is subject to recreational uses, regardless of the ownership of underlying lands. Idaho is slightly less permissive, in a formal if not practical sense, providing that all streams capable of floating a six-inch diameter log or being “navigated by oar or motor propelled small craft” is a public highway available for fishing, boating, or other recreational purposes. Somewhat unexpectedly, Colorado—despite being arguably more progressive in some areas than other western states—has what might be the most restrictive stream access regime, potentially allowing private landowners to completely prohibit anyone from passing down “non-navigable” streams, whether they touch the bottom or banks or not (this might be an understatement, but the issue remains somewhat contested in Colorado).

These examples might seem minor, parochial, or insignificant in the broader public lands context. But two of the greatest conservation successes in the West were the result of private landowners acting to protect public rights. When people park along the roadside at the Cathedral Group viewpoint in Grand Teton National Park, what they are viewing—the Grand Teton and neighboring mountains—was originally protected by an Act of Congress in 1929. But the land they are standing on where most visitors spend most of their time, down in the valley floor, was quietly and somewhat secretly purchased by John D. Rockefeller, Jr. and later transferred to the federal government (with some significant opposition) to expand the park. Across the Tetons in Idaho, the most famous stretch of a world famous trout steam—the Railroad Ranch reach of the Henrys Fork—flows through the old hunting and fishing retreat of the Harriman and Guggenheim families. In 1977, Averell and Roland Harriman donated the 11,000-acre ranch to the state of Idaho for use as a state park, providing for permanent public access to one of the world’s great fly-fishing destinations.

These stories, and my own experiences, came to mind this week when I received a call from a researcher investigating how to manage amenity-driven population growth in the rural West. She asked if I had any ideas for tools that would work to balance private and public interests, and my immediate (and admittedly cynical) reaction was that nothing would work—not until some fundamental change occurred in how the rural West perceives private property.

But immediately upon saying that, I thought of the “private property” sign I encountered while chasing steelhead. The bottom of the sign contained two additional admonitions. Not the expected “survivors will be prosecuted,” but rather the following: “please clean up after yourself” and “48 hour maximum stay.” This sign, on a private ranch at the end of a quiet, bumpy dirt road next to a famous steelhead stream, was a welcome sign.

Stories of private landowners offering public access to their lands might be more common outside of the western United States (in Wisconsin, for example, the state claims 25,000 miles of groomed snowmobile trails open to the public, most of them on private lands). But in the West, the stories of private landowners too often lean the other direction, focusing on those that seek to exclude rather than share. They thus overlook the fact that there are also stories of western landowners who have already accepted that cooperation—even with respect to their private lands—should be a fundamental characteristic of the rural West.

These are small stories, to be sure, but they are a confirmation that in some places in the rural West, different perspectives and attitudes are emerging (or in fact, were always there) on the relative rights of the public and private with respect to our land. And those different attitudes might allow for new approaches to developing the proverbial “society to match the scenery,” as long as we are willing to recognize them. At a time when stories of western lands are focused on the selfishness of a few, we should acknowledge that these stories of sharing are just as common.

And so taking advantage of this one example last Saturday, I walked past the private property sign to where I knew (ok, hoped) a steelhead would be waiting—a steelhead that would not be waiting for me on public land.

 

Public lands, common ground, and the smell of sagebrush after the rain

(photo by Jonathan Long)

The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.

But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.

A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.

Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).

But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.

Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.

Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.

Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.

With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.

So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.

I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.

We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.

 

 

Juma of Itanda

(photo of the Victoria Nile in Uganda)

Moscow, Idaho—where I live and teach—is situated in a wonderfully complex property landscape. Unlike many areas in the interior West, we are near National Forests and Wilderness areas, as well as largescale private timber lands. Our University is situated on historic Nez Perce tribal land, and the Nez Perce’s flight toward Canada began just south of here. And we are in salmon and steelhead habitat, have access to some of the best whitewater boating in the world, and are a western stone’s throw from the somewhat controversial four Lower Snake River dams. Rivers, and what many of us think of as our rights in free-flowing rivers, are an integral part of our community and culture. We have unlimited opportunities to think and talk about how we define and allocate rights to natural resources.

So, while it might not be obvious, that’s why I’m recommending you watch a short video about Uganda. Produced by our hometown favorite greatest company in the world, Northwest River Supply, the video introduces part of the conflict around the Isimba Dam on the Victoria Nile in Uganda. Having just spent a few weeks in Chile talking about dams on the Bio Bió, and wondering about how to think about dams versus recreation and tourism in a developing world context, I think this video tells a very useful story.

Juma of Itanda from NRS Films on Vimeo.

Private property, markets, and natural resources: Lessons from Chile's water code

As part of this semester’s introduction to Environmental Law, I asked my students what “Environmental Law” means to them. The first answer was “government interference with private property rights.”

Because any resource protection or allocation regime must work in place, I spend a lot of time in all of my classes discussing the hows and whys—and benefits—of natural resource regulation in Idaho. One aspect of this discussion is always about the role of free market principles in managing the natural environment. But this aspect of the conversation seems to trend toward the abstract, without context that is meaningful for students who might have grown up in the farming, ranching, timber, and mining towns that are still home to many Idaho residents.

The first two weeks of January (both this year and last), I co-taught a course on international aspects of water resource conflicts in the Bio Bío river basin in Chile. Two things tend to surprise our students. First, new dams (including this approved project on the Rio Cuervo in northern Patagonia) are a significant part of Chile’s water resource planning, for a variety of both simple and complex reasons. And second, Chile has chosen to privatize water rights and rely on a market approach to allocating water use.

Despite being thousands of miles from home in a country most of them know very little about, this second element of Chile’s water resource regime provides context useful for my Idaho law students, many of whom innately distrust government and prefer market-based natural resource regulation.

After the Pinochet military coup in 1973, the new military dictatorship relied on a group of largely U.S.-trained economists knows as the “Chicago Boys” to implement a water code that relied almost entirely on privatization and freely-tradable water rights. Carl Bauer’s book Siren Song (and his related articles) contains an excellent overview of Chile’s water code, with Silvia Borzutzky and Elisabeth Madden (Markets Awash: The privatization of Chilean water markets, 25 J. Int. Dev. 251 (2013)) providing an update on changes since Siren Song was published in 2004.

Why is the Chile story useful for my Idaho students? Because, as you might imagine, the system hasn’t worked out as hoped. In practice, Chile’s water markets work relatively well in watersheds without competing types of uses (i.e., little or no hydropower v. irrigation conflict). And not surprisingly, the markets work relatively well when sufficient water is available for all users.

But when there is conflict, both with respect to the type of use or amount of water available, the system struggles. Part of the difficulty is due to a system that encouraged speculation, that doesn’t seem to honor priority in time, that failed to precisely define rights to water, or that made an unrealistic distinction between consumptive and non-consumptive uses. On that last point, the Chilean Supreme Court determined that a dam operator, with a “non-consumptive” right, could freely alter water flows even if the altered flows harm preexisting downstream consumptive rights holders.

This is only a simplified, incomplete introduction. But for anyone interested in property, water, or natural resources management, Chile’s story is fascinating. I recommend considering it. It relies on private property rights without adequately protecting them. It characterizes water as a public good, while allowing (until recently) private speculation and hoarding. It adopted an ‘American’ understanding of the role of the market to a greater extent than we’ve ever considered. And it provides a great case study to help think about water resource conflicts in the western United States, and the appropriate balance of market mechanisms and government regulation.

Malheur and losing trust in the rural West

(photo of controlled burn on Malheur National Wildlife Refuge courtesy of U.S. Fish & Wildlife Service)

 

When Ammon Bundy and his crew of militants occupied the Malheur National Wildlife Refuge, they briefly forced western public lands management into the national consciousness. The reactions have at times shaded toward humor, condescension, and elitism, both cultural and intellectual, with unfortunately somewhat limited substantive coverage of the relevant cultural and policy issues that are the foundations of public lands conflict (the excellent regional publication High Country News being a notable exception). But for those of us who care about the West, the Malheur occupation, and the nation’s reaction to it, have the potential to be much more tragedy than farce, even if the militants eventually quietly retreat to their homes.

Because assuming the occupation ends peacefully, perhaps the most significant effect—and perhaps tragedy—of the Malheur situation will be the poisoning of public opinion with respect to the role rural westerners should play in managing the public lands.

In the preface to his excellent book on public lands policy, Crossing the Next Meridian, Charles Wilkinson argues that “law grows up from the people it serves by codifying the values of nonlawyers, of the citizenry at large. Viewed in this light, law must be accessible to the public, for it is—or ought to be—the manifestation of public will.” This notion, while uncontroversial in an abstract sense, is somewhat more complicated in the public lands West, where the primary point of contention is how we define the “public.”

The Malheur Refuge—even more than the Bureau of Land Management-administered “public lands” that surround the refuge and are the primary source of rancher distrust in the federal government—is part of our national birthright, and belongs in a real and enduring sense to all Americans. But even in acknowledging that fact, it seems appropriate to recognize that westerners experience and connect with the public lands in a much less abstract way than non-westerners do. I do not think it is inconsistent to say that even as these lands belong to all of us, they belong to some of us differently than others. This is the fundamental idea behind place-based conservation, collaborative natural resources management, and even federalism or localism: that those who live in and best know a place might have something significant to contribute to its management and future.

So for those of us who disagree with the ideology and strategy of the Malheur militants, it would be a tragic mistake to respond to this newest skirmish in the Sagebrush Rebellion by fomenting distrust of the rural West. Even in the context of public lands management, place matters, as does consideration of the people who do, in fact, know and love that land most (or certainly believe that they do). The public lands do belong to all Americans. But if collaboration, place-based conservation, or Stegner’s claim that “cooperation … is the quality that most characterizes and preserves” the West are going to matter, we must learn to trust the people that live there. And of course, they must earn that trust.

The future of the public lands West depends on our nation trusting the western peoples that live on, love, and are part of our public lands, and we will rue the loss of that trust long after the Malheur militants have given up and gone home. That might be the ultimate tragedy of the Malheur occupation.

Whanganui River granted legal identity

There is a fascinating story from New Zealand regarding an agreement between the government and the Whanganui River iwi (a group of Maori who live near the river) to grant the Whanganui River status as an entity under New Zealand law.  "A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law - 'in the same way a company is, which will give it rights and interests'."  The river will be protected by two guardians, one representing the Crown, and the other representing the iwi.

The Whanganui River is the third longest river on the North Island of New Zealand.  It has been subject to ongoing court battles between the Crown and the Maori since at least 1873.  The area around the Whanganui River was heavily populated by Maori prior to the arrival of the Europeans, and the mouth of the river became an important trading post and European settlement.  Efforts have been made for the past several decades to dam the river for hydropower.  Those efforts have been heavily contested by the Whanganui River Maori Trust Board and environmentalists.

Thank you to Dan Ernst for the story tip!

Tanya Marsh

The Death of a Town

The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated.  The mining companies that caused the contamination and abandoned the mines are, of course, out of business.  The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”

Yet, the article also describes the people who didn't want to leave, despite every reason to do so.  The article describes the remaining residents:

A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”

A fascinating, and depressing story.

Tanya Marsh

Cattle Ranchers, Environmentalists, and the Keystone XL Pipeline

There is an interesting article in The Economist regarding the proposal to bring the Keystone XL oil pipeline from the tar sands of Alberta, Canada to Texas.  The new pipeline will cross Montana, South Dakota, Nebraska, Kansas, and Oklahoma on its way to Port Arthur, but apparently it is the Cornhuskers who are raising the biggest stink.  The main reason is concern about potential contamination of the Ogallala aquifer:

"Many Nebraskans are worried that a leak from the pipeline might pollute the Ogallala aquifer, a vast underground reservoir that stretches from South Dakota to Texas and provides Nebraska with almost all its tap water and irrigation. The aquifer rises especially close to the surface in the Sand Hills region in the north of the state, near Mrs Luebbe’s ranch. The water table is so high, explains one of her neighbours, that if you drive a piece of piping three or four feet into the ground, water clean enough to drink will start gushing out."

The article doesn't explain how TransCanada will acquire the rights to bring the pipeline through the United States, but I presume that eminent domain will be involved.  That's interesting, since apparently the pipeline so unpopular in Nebraska that even the state's Republican governor has written to Hillary Clinton, asking her to refuse the required permits unless TransCanada modifies the pipeline's route.

Tanya Marsh

John Denver Peak?

I grew up listening to John Denver songs, so I was intrigued to see that there is a petition to name a peak
in the Rocky Mountains "John Denver Peak."  Specifically, the petition is to name the east peak of Mount Sopris, above Aspen, Colorado, rumored to be the site where he wrote "Rocky Mountain High."

  This petition has sparked a controversy between those who think that this is a perfect way to honor the artist, versus those who think that Denver's legacy as an environmentalist is overhyped, and that he did the area more harm than good by promoting it in his songs.

NPR did a piece on the controversy the other day, and if you are interested, you can sign the petition here.

If you need some inspiration, you can see John Denver perform Rocky Mountain High here, or, my personal favorite, Grandma's Feather Bed (with the Muppets) here. 

Tanya Marsh

 

Blumm on the Development of American Natural Resources Law

Michael C. Blumm (Lewis & Clark) has posted The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance on SSRN.  Here's the abstract:

The Columbia River Gorge, site of the nation’s first national scenic area and the only near sea level passage through the Cascade Mountains, possesses the longest continuously occupied site of human habitation in North America. The Gorge has served as a major transportation corridor between the Pacific and the Great Basin for hundreds of years, is home to spectacular scenery, dozens of waterfalls, many sacred sites, and abundant recreational activities, including world-class kite boarding and wind surfing. The Gorge has also been the location of over a century of legal battles that have made major contributions to American natural resources law. From judicial interpretations of 19th Indian treaties, to the development of the largest interconnected hydroelectric system in the world, to ensuing declines in what were once the world’s largest salmon runs – ultimately resulting in endangered species listings – to innovative federal statutes concerning electric power planning and conservation and land use federalism, to compensation schemes for landowners burdened with regulation, to dam removal and conflicts between sea lions and salmon, the Gorge has spawned a legal history as rich as its geography. This article surveys these developments and suggests that no area of the country has produced more varied and significant contributions to natural resources law.

Steve Clowney

Hudson on How Federal Governments Create Tragedy of the Commons Problems

Blake Hudson (Stetson) has posted Federal Constitutions: The Keystone of Nested Commons Governance (Alabama Law Review) on SSRN.  Here's the abstract:

The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments exclusive regulatory authority over certain types of natural capital appropriation - such as resources appropriated by private forest management or other land use-related economic development activities - entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally entrench poor forest management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international issues may remain unaddressed because the national government is not constitutionally empowered to guide subnational policy formation and therefore may not bind subnational governments to certain types of international agreements related to private forests. Though there are around 160 unitary systems of government worldwide, compared to 25 federal systems, approximately 46 percent of the world’s land base is contained within the boundaries of federal nations. For certain types of natural capital, like forests, the numbers are even starker. Though federal systems comprise approximately 13 percent of the world’s governments, they maintain control over 70 to 80 percent of the world’s forests - a resource crucial for combating climate change.

Ultimately, national constitutional incapacity to participate in subnational natural capital management in federal systems legally entrenches three natural capital commons, one nested within another: 1) private individuals may rationally appropriate natural capital within the state commons in the absence of state government rules guiding sustainable resource appropriation; 2) state governments may rationally appropriate natural capital within the national commons because the national government is not constitutionally empowered to guide resource appropriation within states; and 3) national governments may rationally appropriate resources within the global commons because subnational governments constrain federal system participation in legally binding global governance of resources. This article introduces and describes the operation of nested natural capital commons created by certain federal structures and establishes a foundation for studying how keystone constitutions in federal systems may be fortified to allow more effective natural capital management across local, national, and global scales.

Steve Clowney

Las Vegas and the Future of Water Usage in the U.S.

A quick article on how Las Vegas has become the most water smart city in the country:

It's illegal now to have a front lawn in any new home in Las Vegas. The water authority will pay people who already have lawns to take them out--$40,000 an acre-- and replace them with native desert landscaping. They pay golf courses to do the same thing. It is illegal to let your sprinkler spray water on a sidewalk or street, and Las Vegas specifies the kind of hose nozzle you can use to wash your car (trigger style, so it doesn't simply pour water out when you're not using it).

And a determined recycling effort has produced pioneering results: the Las Vegas metro area now collects, cleans, and recycles to Lake Mead 94 percent of all water that hits a drain anywhere in the city. Essentially, the only water that isn't directly recycled back to the source is the water used outdoors.

Steve Clowney

Blumm and Guthrie on Internationalizing the Public Trust Doctrine

Michael Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision (U.C. Davis Law Review).  Here's the abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

Steve Clowney

Rule on Airspace in a Green Economy

Troy A. Rule (Missouri) has posted Airspace in a Green Economy on SSRN.  Here's the abstract:

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

Ben Barros

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

Fracking as Nuisance?

Thanks to reader Lee Van Put for pointing me to this article arguing that nuisance law might be used to put a break on gas drilling in the Northeast.  The basic argument that drilling practices that cause harm to neighbors might be a nuisance seems reasonable to me.  It strikes me that this can't be the first time this kind of issue has come up for drilling practices - anyone know of any specific precedents?  The harm/benefit scenario reminds me of Boomer, which would be controlling in New York - damages might be awarded rather than an injunction.

Ben Barros

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