PropertyProf Blog

Property in Rain

Yesterday's NY Times has a fun story about a change in Colorado law that now makes it permissible for owners to collect rain that falls on their property.  A taste:

For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.  Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. . . . 
.
Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

Ben Barros

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Appel on Wilderness and the Judiciary

Peter A. Appel (Georgia) has posted Wilderness and the Judiciary on SSRN.  Here's the abstract:

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies' decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies and numeric information from all of the cases decided under the 1964 Wilderness Act. The numbers reveal three striking facts. First, a two-fold gap exists between agency success rates in litigation depending on who brings the challenge and the type of challenge it is. Second, the agencies tend to lose in challenges brought by environmentalists more often than not. Third, the party of appointment for the judges does not appear to affect overall distribution of their votes as measured on a simple "pro-wilderness"/ "anti-wilderness" axis. After providing some possible explanations for this apparent one-way judicial ratchet favoring wilderness protection-some of which will be examined more thoroughly in future work-the Article offer some observations about whether such a one-way ratchet will always benefit wilderness restoration and protection.

Ben Barros

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Montana S. Ct. Resolves Mitchell Slough Dispute

The Montana Supreme Court resolved a long-running water rights dispute, which focused on whether the Mitchell Slough was a natural watercourse:

In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state's stream access law.

The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.

The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream. . . .

Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “The District Court's dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, the SAL would prohibit the very access it was enacted to provide.”

The Supreme Court also overturned the lower court's conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.

The court also disputed landowners' claims the slough was a “man-made water conveyance system” that exists only because of man's manipulations.

“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court's decision reads.

The court did offer a caveat on the issue of public access.

The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough's bank, the court said.

Ben Barros

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Teaching Natural Resources Law in First Year Property

The paper on drilling in the Marcellus Shale mentioned in the previous post is very timely -- I just did a short unit on ownership of water and natural resources in my first-year Property class.  This was the first time that I've covered natural resources in Property.  I thought it worked very well, and brought out some very important issues (e.g., that the mineral estate generally is dominant over the surface estate).  I know that it is hard to cover more material in the ever-shrinking first-year course, but I thought that the mineral and water issues were worth the hour or two it took to discuss them.

Ben Barros

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Bollinger on Marcellus Shale

Justin Bollinger has posted Marcellus Shale Exploration & Farmland Preservation in Pennsylvania on SSRN.  Here's the abstract:

The recent boom in drilling for natural gas in the Marcellus Shale formation, hidden deep below the surface in parts of northern and western Pennsylvania, New York, Ohio, West Virginia, and Maryland, will undoubtedly have immediate and lasting consequences for countless acres preserved through Pennsylvania's Farmland Preservation Program, private land trusts, and tax incentive programs such as the Clean and Green Act. Many Pennsylvania farms preserved through these programs are likely to encounter pressure to permit drilling on preserved farms if such tracts are located in areas with high concentrations of natural gas. The Farmland Preservation Program, as it was originally enacted, does not prohibit drilling for natural gas on preserved land. Consequently, farmers have had the option to allow drilling on their preserved farms, which some have allowed. However, the recent increase in drilling activity has raised concerns with the Farmland Preservation Program, farmers, and those concerned with conservation that such drilling may inhibit the goals of the preservation program. On the other hand, the added source of income may be a way for farming families to pay off outstanding debt associated with their agricultural operations and to pass the farm on to the next generation without having to sell or subdivide land to residential or commercial developers.

This paper will discuss the intersection of these two topics, drilling and farmland preservation, specifically addressing a handful of Pennsylvania preservation programs and laws and the ways that each program seeks to deal with drilling on preserved land. Additional questions such as whether the current preservation programs and laws are consistent with the policy objectives underlying the programs, whether the programs are consistent with one another in furthering preservation, and whether the current programs could benefit from the recent increase in drilling, will also be incorporated. Also, the approach of neighboring states will be addressed as a way to suggest some possible ways for Pennsylvania to clarify its position on drilling for natural gas on preserved farmland in order to create a consistent approach from a policy perspective.

Ben Barros

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Morriss on Politics and Property in Natural Resources

Andrew P. Morriss (Illinois) has posted Politics & Property in Natural Resources on SSRN.  Here's the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Ben Barros

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Moose, Free For the Taking

From Craigslist:

I have a dead moose free for the taking.

It died yesterday, apparently of natural causes. I called Fish & Game to come and get it. Apparently, moose are a natural resource and belong to everybody, until they die, then they belong to whoevers property they die on. So, according to Fish & Game, the moose now belongs to me. Sweet!!

So, if you want a free moose, please come and get it before the bears do.

You could use it for dog food, or stuff it and put it your front yard, bear bait, whatever. If you live in the lower 48, this might be your best opportunity to get a free Alaska moose. I dont really care, I just want it out of my yard.

Please reply via email, I dont need all the animal rights folks calling me, its dead, and according to Fish & Game, its got no more rights...

Ben Barros

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Chouinard and Steinhoff on Split-Estate Negotiations

The most recent issue of the Review of Law & Economics has an article by Hayley H. Chouinard and Christina Steinhoff (Washington State) called Split-Estate Negotiations: The Case of Coal-Bed Methane.  Here's the abstract:

Coal-bed methane is an emerging contributor to the US energy supply. Split estates, where landowners control the surface and the energy companies lease the rights to the underground gas from the federal government, often impede successful negotiations for methane extraction. We provide an extensive form representation of the dynamic game of the negotiation process for subsurface access. We then solve for a set of Nash equilibrium outcomes associated with the split estate negotiations. By examining the optimal offers we can identify methods to improve the likelihood of negotiations that do not break down and result in the gas developer resorting to the use of a bond. We examine how changes in transaction costs or entitlements will affect the outcomes, and support our finds with anecdotal evidence from actual negotiations for coal-bed methane access.

Ben Barros

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Two from Smith

Henry E. Smith (Yale) has posted two new articles on SSRN.

Community and Custom in Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Governing Water: The Semicommons of Fluid Property Rights

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

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Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

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New PLF Blog on The Endangered Species Act

This is outside of my main area of interest, but those of you interested in environmental issues might want to check out the Pacific Legal Foundation's new blog on the ESA.  The PLF folks, of course, have a clear agenda, but their analysis of property-related issues is often interesting and cogent.

Ben Barros

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Property in Space

The Boston Globe has a great article on property in space.  It raises a number of interesting theoretical issues about property, and might make a great teaching tool.

Hat tip:  Ilya at the VC.

Ben Barros

Asteroid Photo From NASA via Wikicommons

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Frishmann on Environmental Infrastructure

Brett M. Frischmann (Loyola Chicago) has posted Environmental Infrastructure on SSRN.  Here's the abstract:

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.

The essay is based on a presentation at a panel on infrastructure commons at the 2007 Law & Society Annual Conference in Berlin, Germany. It will be published in the Ecology Law Quarterly along with three essays on infrastructure commons written by David Driesen, Gregory Mandel, and Marc Poirier.

I saw this paper presented at Law & Society.  Very interesting!

Ben Barros

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The Progressive Case for Water Markets

Jonathan Adler has an interesting post on the subject.

Ben Barros

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Ruhl on Ecosystem Services and the ACF Dispute

J.B. Ruhl (Florida State) has posted Equitable Apportionment of Ecosystem Services: New Water Law for a New Water Age on SSRN.  Here's the abstract:

This article examines the interstate water controversy between Florida, Georgia, and Alabama regarding allocation of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The three states have been unable after 20 years of negotiation to resolve conflicts between urbanization in Atlanta, commercial uses in Alabama, and ecological protection in Florida. This article proposes that, were the states to seek apportionment of water by the Supreme Court under the Court's doctrine of equitable apportionment, the ecosystem services flowing within the ACF should be an integral allocation factor in deciding the flow regime Georgia and Alabama must ensure enters the Florida portion of the ACF.

Ben Barros

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Rose on Carbon Trading

Carol Rose (Arizona) has posted From H20 to C02: Lessons of Water Rights for Carbon Trading on SSRN.  Here's the abstract:

Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

Ben Barros

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Colburn Lectures on Natural Resources

Jamison Colburn (Western New England) will give two Stegner Center Lectures at the University of Utah this week:

On October 1, he will speak at a Downtown Continuing Legal Education (CLE) brown bag lecture at Jones Waldo Holbrook & McDonough. His talk will address "Where the Fire Meets the Road: RS 2477 and the Healthy Forests Restoration Act." Advance registration and payment of $10 for lunch is required. To register, call 581-7356.

On October 2, at the College of Law, Colburn delivers his Stegner Center Young Scholar Lecture: "The Fire Next Time: Planning Land Uses in the Wildland Urban Interface." In this lecture, which is free and open to the public and members of the legal community, he will discuss the “not so aptly titled” Healthy Forest Restoration Act, the Forest Service planning rules, and the relationship each bears to local governmental authority to plan/zone/police land uses on private lands. One CLE credit is provided.

Ben Barros

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Klein and Zellmer on Property, Floods and Hurricanes

Christine A. Klein and Sandra B. Zellmer (University of Florida College of Law) have posted Mississippi River Stories: Lessons from a Century of Floods and Hurricanes on SSRN. Here's the abstract:

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that improvident coastal and floodplain development is facilitated by a pair of taxpayer-funded subsidies that unintentionally exacerbate the flood dangers faced by low-lying communities. First, floodplain developers “take” federal dollars in the form of subsidized flood control structures that enable construction in otherwise unbuildable areas. As a consequence, many floodplain residents are lured into harm's way. Alternatively, would-be developers may “take” federal dollars in the form of compensation under the Fifth Amendment, paid by states and local communities that forbid risky construction in flood-prone areas. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a glaring misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Ben Barros

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Driesen on Infrastructure Commons

David M. Driesen (Syracuse) has posted An Economic Dynamic Approach to the Infrastructure Commons on SSRN.  Here's the abstract:

This brief essay comments upon and extends Brett Frischman's idea of the infrastructure commons, i.e. that certain commons resources function as infrastructure. After suggesting some refinements of the infrastructure commons theory, this essay shows how an economic dynamic approach to law (see David M. Driesen, The Economic Dynamics of Environmental Law (MIT Press 2003) can help strengthen the case for proper management of the infrastructure commons, helping bolster the case for preserving the commons and identifying some of its limitations. The essay, like Professor Frischman's original article, applies infrastructure commons theory to both environmental and intellectual property resources.

Ben Barros

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Rasband and Garrett on Public Land Policy

James R. Rasband and Megan Garrett (BYU) have posted A New Era in Public Land Policy? The Shift Toward Reacquisition of Land and Natural Resources on SSRN. Here's the abstract:

Traditionally, the history of public land law has been divided into periods of acquisition, disposition, a shift to retention, and then a period of management. The paper reviews these historical demarcations of public land law and then asks whether we have entered a new period of public land policy that might be termed a period of reacquisition. The paper considers the 19.8 million acre increase in the public land base (outside Alaska) since the 1964 passage of the Land and Water Conservation Fund and the Wilderness Act. It details this federal acquisition under the Land and Water Conservation Fund, by way of land exchanges, and under a variety of other statutes. The paper also suggests that the 37 million acres of land protected under the land trust and conservation easement movement can also be understood as part of this shift to reacquisition because of substantial federal tax expenditures in the form of deductions for conservation easements. Finally, the paper considers whether federal regulation can be characterized as a form of public reacquisition, even if the underlying fee is retained in private ownership, because the regulation shifts control over land and natural resources away from private parties and to the public. The paper, for example, considers whether Section 404 of the Clean Water Act might be understood as akin to a reverse of the federal Swamp Lands Grant Acts of the Nineteenth Century.

Ben Barros

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