PropertyProf Blog

Squillace on the Antiquities Act of 1906

Mark Stephen Squillace (University of Colorado School of Law) has posted The Monumental Legacy of the Antiquities Act of 1906 on SSRN.  Here's the abstract:

The Antiquities Act of 1906 authorizes the President of the United States “to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [federal] lands . . . to be national monuments . . . ” The law was passed during the Theodore Roosevelt administration, and Roosevelt quickly set about designating a wide range of lands and resources as national monuments, including notably, the 800,000 acre Grand Canyon National Monument. Roosevelt's expansive interpretation of the law was embraced by later presidents and ultimately by the Supreme Court. In the latter part of the 20th century the use the law waxed and waned, reaching new heights with President Carter's spectacular designation of 56 million acres of land in Alaska as National Monuments, then falling dormant, only to become resurgent again at the end of President Clinton's first term with the designation of the Grand Staircase-Escalante National Monument, and the designation of 21 new or expanded monuments in Clinton's second term. This article traces the history of the Antiquities Act and its remarkable legacy. It describes the many special places that have received protection under the law, and the many controversies that the law has sparked. It also addresses the myriad legal and policy issues raised by the law and its evolution as a conservation management tool. Finally, the article discusses proposals for reforming the Antiquities Act, ultimately concluding that the law should remain just as it is.

Ben Barros

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

Times on Cultural Property Dispute

Yesterday's NY Times Magazine has an interesting story on a dispute between Yale and Peru over artifacts from Machu Picchu.

Ben Barros

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

Blumm and Bosse on Norton v. SUWA

Michael C. Blumm and Sherry Bosse (Lewis & Clark) have posted Norton v. SUWA and the Unraveling of Federal Public Land Planning on SSRN.  Here's the abstract:

In 2004, in Norton v. Southern Utah Wilderness Association (SUWA), a unanimous Supreme Court ruled that environmentalists could not obtain injunctive relief against the failure of the Bureau of Land Management (BLM) to regulate growing off-road vehicle (ORV) use in federal wilderness study areas in Utah, despite a statutory directive that BLM prevent “impairment” of such areas, and despite BLM's promises in its land plan that it would monitor ORV use and close the areas if warranted. Justice Scalia's opinion for the Court acknowledged that the Administrative Procedure Act authorizes federal courts to compel action in the face of agency inaction, but decided that BLM's failure to act to prevent impairment was not actionable because Congress had not directed BLM to take a “discrete” action, instead leaving the agency with considerable discretion as to how to prevent impairment. The decision in SUWA has produced widespread ramifications: federal land managers have employed it to successfully insulate from judicial review a wide variety of federal actions as well as inactions. Moreover, the Bush Administration seized upon the decision as a justification for redefining national forest land plans as aspirational in nature, without any making any binding commitments as to particular authorized activities or land suitability. The Administration also moved to eliminate environmental review of national forest plans, claiming that under its redefinition plans produce no environmental effects, an effort that was subsequently stalled by the courts.

This article discusses these developments, maintaining that they are inconsistent with the congressional commitment to federal land planning made in 1976 in both the Federal Land Management and Policy Act and the National Forest Management Act. Thirty years ago, Congress created modern federal land planning as the cornerstone of greater public involvement in public land decisionmaking. SUWA and its aftermath have destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars. If effective public participation in federal land planning requires that the public be able to enforce the promises made in land plans, Congress must amend the authorizing statutes to restore federal land plans as legally significant commitments of public resources.

Ben Barros

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

British Government Sale of Waterways

From the London Times online:

The Government is considering a billion pound-plus sale of the country’s canals and waterways.

British Waterways, the government-controlled body responsible for 2,200 miles of canals and rivers in the UK, is running a beauty parade of banks with a view to kick-starting a strategic review in the summer. The review will examine all options for the business, including a sale of all or parts of the portfolio, a possible stock market listing or other partnership or funding structures.

A sale could raise as much as £1 billion for the Treasury.

British Waterways is sitting on a property goldmine that includes all the towpaths and land alongside the canals. The company last valued its portfolio at more than £500 million, but that figure could more than double over the coming years as it shares the spoils of housing and office regeneration schemes on its land.

Ben Barros

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

Carpenter on Management of Sacred Sites

Kristen A. Carpenter (University of Denver) has posted The Interests of "Peoples" in the Cooperative Management of Sacred Sites on SSRN.  Here's the abstract:

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government to recognize their interests and battling one another in the process.

To foster a more cooperative approach to sacred sites management, it may help to transcend the model of absolute federal control with various groups left fighting over the crumbs of accommodation. Instead, federal land management should recognize the concerns of groups on all sides of sacred sites disputes, make those concerns an explicit part of legal analysis, and develop models to recognize the various interests at stake. It will be immensely challenging to reform the management of sacred sites in these ways, and this essay aims only to offer some preliminary thoughts on the topic.

In particular, this essay argues for analysis of sacred sites problems through the language of “peoples” and “peoplehood.” A people is often defined as a body of persons united by a common culture, tradition, politics, or kinship. And peoplehood means the sense or state of belonging to a people. The concept of peoplehood thus helps to explain and validate why human beings group themselves in certain ways and why certain things may be important to them. In the sacred sites context, peoplehood has at least two important ramifications: it can expand the discussion beyond the power of the federal government to include the interests of subnational groups, and it can inspire those groups to recognize and accept one another's interests. Thus, considering the interests of peoples might lay the groundwork for an attitude of cooperation at sacred sites.

Ben Barros

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

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for more than a decade at the intersection of democracy and ecology. The public is still made to believe that the "conservation" versus "preservation" of our discrete, bounded parcels of public land is the central issue and that political success is defined by the capturing of a parcel of public land and its being put under the preferred legal regime. Experts and activists have largely seen past that definition of success and have adopted open-textured notions of ecosystem- and adaptive management on which everyone agrees in the abstract but not in application. Nevertheless, public confidence in administrative agencies is very much contingent upon confidence in professional expertise, even as agency governance grows increasingly incompatible with any truly ecosystemic approach to public lands. Indeed, while active management and ecological restoration are superior frames of reference for most public lands today, the only way these can even possibly frame the conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability in our pluralist society. This dilemma is presented most immediately in their many legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen very different enabling statutes. The dilemma is that land health is increasingly incompatible with democracy, at least so long as our democracy views the administrative agency as the solution to its problems.

Ben Barros

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

Klein on Law of the Lakes

Christine A. Klein (University of Florida College of Law) has posted Law of the Lakes: From Protectionism to Sustainability on SSRN.  Here's the abstract:

There is something in the human spirit that responds with great passion and outrage when outsiders—however defined—look beyond their own back yards for a useable source of water. Ironically, that same outrage is conspicuously absent when nearby neighbors use water wastefully, as by excessive lawn watering during rainstorms, neglect of leaky faucets, or failure to modernize outdated bathroom fixtures that use large amounts of water simply to transport waste. Curiously, the outsider-neighbor distinction seems to be rooted in artificial human boundaries (such as state lines), rather than in meaningful ecological boundaries (such as watershed limits). In a well publicized Michigan dispute, for example, residents were outraged by a proposal of Nestlé Waters (a subsidiary of the Perrier Group of America) to construct groundwater withdrawal and water bottling facilities within the state. In that case, citizens responded with organized protests, blocking truckloads of bottled water by lying in the streets, and carrying banners with slogans, such as our water is not for sale. Presumably, the same response would not be triggered by the consumption of an equal amount of water by Michigan irrigators, or even by the incorporation of similar quantities of water into products sold outside the state as baby food or soft drinks.

Whatever its explanation, this protectionist response is powerful and widespread. The underlying energy can be harnessed for good, or allowed to express itself in ultimately unproductive ways. Residents of the Great Lakes basin, for example, have long feared that water users from other states will seek to acquire their lake water, exporting it to arid regions of the country. Basin residents have channeled that emotional energy into the development of the Law of the Lakes—a series of treaties, compacts, agreements, state and federal legislation, and common law designed to regulate and protect Great Lakes resources. To date, those documents have struck a precarious balance between the impulses of protectionism (regulating outsiders) and sustainability (regulating water use by basin residents, as well as by outsiders). Resolving the tension has taken on a new urgency, as the Great Lakes states and provinces recently agreed to develop a new and consistent series of state and provincial water laws.

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country—the Colorado River basin—where residents have also undertaken the task of managing a water system that includes two nations (the United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lake documents for evidence of each. Part III offers a description of six essential components of any sustainable state water code, and provides references to a menu of draft legislative provisions available for adoption (with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them, and take full advantage by developing a sustainable body of water law.

Ben Barros

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

Adler on Rapanos and SWANCC

Jonathan Adler (Case Western Reserve) has posted Once More, with Feeling: Reaffirming the Limits of Clean Water Act Jurisdiction on SSRN.  Here's the abstract:

The Supreme Court's decision reaffirming limits on federal regulatory jurisdiction in Rapanos v. United States was significant, but hardly revolutionary. The Court's holding that the Clean Water Act only reaches those wetlands with a "significant nexus" to navigable-in-fact waters followed directly from its prior decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in which the Court held the CWA did not extend to isolated, intrastate waters because they lack a "significant nexus" to navigable waters. Rapanos and SWANCC suggest the Court is reluctant to conclude Congress has authorized far-reaching federal regulatory controls over private land use, absent explicit statutory language to the contrary. Such a federalism "clear statement rule" may be in tension with some environmental concerns, but it need not hamper environmental conservation. Environmental progress is wholly consistent with meaningful limits on federal power. If the federal government is to play an optimal role in the protection of wetlands, and match its efforts to those aspects of wetland conservation that require action of a federal scope, it would concentrate its efforts in those areas where non-federal efforts are most likely to be insufficient. The challenge to policy makers is to adapt conservation measures to the broader legal landscape and recognize that environmental protection can live within legal limits.

Ben Barros

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

Glennon et al. on Water Resources

Robert Glennon (University of Arizona) and collaborators have posted four articles on water resources on SSRN.  Here they are:

Robert Glennon, Jedidiah Brewer, Alan P. Ker, and Gary D. Libecap, Water Markets in the West: Prices, Trading, and Contractual Forms:

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. But, for a variety of reasons, water markets are more complicated than are those for other resources. In this paper, we first explain these differences by examining water rights and regulatory issues. Second, we place our research in the context of other economics literature on water marketing. Third, we present new, comprehensive data on prices and the extent, nature, and timing of water transfers across 12 western states from 1987-2005. Prices are higher for agriculture-to-urban trades versus within-agriculture trades, in part, reflecting the differences in marginal values between the two uses. Prices higher for urban use are also growing relative to agricultural use over time. Markets are responding. The number of agriculture-to-urban transactions is rising over time, whereas the number of agriculture-to-agriculture transfers is not. Further, there is a shift from using short-term leases to using multi-year leases of water and permanent sales of water rights. This pattern underscores the need to consider the amounts of water obligated over time, rather than examining only annual flows in assessing the quantities of water traded as is the common practice in the literature. Considering committed water, we find that more is transferred and the direction of trading is different than if the focus is on annual flows. Finally, the data reveal considerable variation in water trading across the states.

Robert Glennon and Michael J. Pearce, Transferring Mainstem Colorado River Water Rights: the Arizona Experience:

As one of the fastest growing states in the country, Arizona faces a problem: where is it going to find water to support this growth? The problem arises because most surface water supplies are completely allocated and groundwater is being pumped at an unsustainable rate. This leaves, as the only viable source of new water, Colorado River water available through the sale, lease or exchange of existing water rights.

The United States is entering an era of water reallocation, when demand for new supplies will be satisfied by shifting water use from existing users to those with new demands. Voluntary transfers between willing sellers and willing buyers is, we believe, the best way to bring about this reallocation. Water marketing should be especially embraced by the environmental community because the alternatives are unsatisfactory: more diversions of water from the few remaining free-flowing rivers; an increase in groundwater pumping; or the construction of new dams.

This paper explores the opportunities for marketing Colorado River water by examining case studies of individual transfers that have occurred or been proposed. We consider a recent proposal by the seven Colorado River Basin States that would alter the Law of the River with a set of incentives that would encourage water conservation by allowing cities to pay farmers and irrigation districts to undertake extraordinary conservation measures. We conclude that there substantial impediments to water marketing: the legal constraints are formidable; the transaction costs substantial; and the emotions highly charged. Procedural pitfalls and bureaucratic oversight of transfers constitute substantial impediments to the transfer of even modest quantities of water. These regulatory obstacles drive up transaction costs and discourage the development of a market in water.

Robert Glennon, Tales of French Fries and Bottled Water: the Environmental Consequences of Groundwater Pumping:

This article is a substantially revised version of the 19th Annual Distinguished Visitor lecture at Lewis and Clark Law School in September 2006. Drawing on my 2002 book, Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters (Island Press, 2002), I use stories about common activities in our daily life, such as drinking bottled water and eating French fried potatoes, to illustrate the horrible environmental consequences of groundwater pumping. Excessive groundwater pumping has dried up rivers and lakes around the country, including some very surprising areas, such as Florida and Massachusetts. The phenomenon comes from a disconnect between law and science: the science of hydrology understands that surface and groundwater are integrated parts of the hydrologic cycle, but the legal system governs ground and surface water by different legal doctrines. Rather than reforming the system, we have devised Rube Goldberg solutions, such as refilling dried-up lakes by pumping more groundwater. This illustrates a remarkable trait of human beings: we have an unlimited capacity to deny reality.

Robert Glennon, Christopher Avery, Carla Consoli, and Sharon B. Megdal, Good Intentions, Unintended Consequences: The Central Arizona Groundwater Replenishment District's Search for Renewable Supplies of Water:

The 1980 Arizona Groundwater Management Act is widely celebrated as a progressive piece of legislation that attempted to halt excessive groundwater pumping. A key component of the Act was its requirement that developers demonstrate an “assured water supply” [AWS] before receiving permission to build. In the early 1990s, the legislature created an optional method for securing AWS compliance: membership in the Central Arizona Groundwater Replenishment District [CAGRD]. This option has turned out to be far more attractive than was originally envisioned. This paper explores the good intentions but unintended consequences brought about by the CAGRD option.

As membership in CAGRD has skyrocketed, so has the CAGRD's obligation to obtain additional supplies of renewable water. From where, and at what price, CAGRD will obtain these supplies is very problematic. This article offers a set of options that would reform how CAGRD operates. Without significant change, CAGRD will find itself required to accept additional members but without access to long-term water supplies to meet it replenishment obligations.

Ben Barros

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

Keiter on The Law of Fire

Robert B. Keiter (University of Utah - S.J. Quinney College of Law) has posted The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation on SSRN.  Here's the abstract:

This article explores the relationship between law, fire, and resource management policy on the public lands. It offers an overview of federal fire policy, describing the evolution of that policy and how the current forest health debate has shaped policy options. It reviews and analyzes the legal framework governing fire policy on public lands, focusing on relevant organic legislation and site-specific statutes, the interface between environmental law and fire management including recent Healthy Forests Initiative reforms, the Healthy Forests Restoration Act of 2003, tort liability and other compensation doctrines, and the role of state law in shaping federal policy. It then places the fire policy debate in a broader public land policy context, arguing that the current legal framework is not fundamentally flawed though some reforms are necessary to better accommodate fire on the public domain. It concludes that clear legal standards and procedures are necessary to ensure legitimacy and promote accountability in the uncertain and risk-laden wildfire policy setting.

Ben Barros

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

Harvard/Boalt/UCLA Junior Faculty Workshop on Environmental and Natural Resources Law

From the announcement:

Harvard Law School, Boalt Hall, and the UCLA School of Law are pleased to announce a new, jointly sponsored academic workshop, to be held annually and on a rotating basis at the three institutions. The aim of the workshop is to support the development of junior scholarship in the field of environmental and natural resources law (broadly and inclusively conceived to include interdisciplinary work that cuts across related fields or disciplines). The workshop is a joint east-west coast venture.

TOPICS:

We are soliciting papers from tenure-track scholars either untenured or with no more than three years of tenure. The papers must be unpublished when they are submitted, and may be on topics that include: Environmental Law and Policy, Natural Resources Law and Policy, Land Use, Risk Regulation, International Environmental Law, Environmental Justice, Energy Law, Environmental Federalism, Environmental Law and Constitutional Law, Environmental Law and Administrative Law, Empirical approaches to Environmental Law or Resource Management, Environmental Governance, Environmental Economics and Law.

The inaugural event will take place this summer at Harvard Law School on Wednesday, June 13th. We are aiming to select a small number of papers for presentation at the workshop, which will be an all-day event. Authors will be expected to give a short presentation of their papers at the workshop to be followed by two commentators. The workshop will consist of the selected authors, the three host professors (Professors Freeman of Harvard, Farber of Boalt Hall and Carlson of UCLA), and six to eight guest commentators from the relevant fields.

PAPER SUBMISSION PROCEDURE: Please send papers and any questions about the workshop to Miriam Seifter, Environmental Law Fellow: [email protected].

Ben Barros

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

Blumm and Bosse on Justice Kennedy and the Environment

Michael C. Blumm and Sherry Bosse (Lewis & Clark Law School) have posted Justice Kennedy and the Environment: Property, States' Rights, and the Search for Nexus on SSRN.  Here's the abstract:

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence provided the margin of victory.

Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases — as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field.

This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years, he has written just one environmental dissent — and that on states' rights grounds, which is one of his chief priorities.

The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging taking demands, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights — which is unassailable — yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation.

At what might be close to the mid-point in his Court career — and with his power perhaps at its peak — Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded do not conflict with Kennedy's overriding notions of states' rights.

Ben Barros

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

Intersection of Environmental Law and Land Use

The Pace Environmental Law Review has an issue available online titled Exploring the Intersection of Environmental and Land Use Law: A Special Issue of the Pace Environmental Law Review, Featuring Commentaries and a Collection of Articles by Professor John R. Nolon.  Looks like interesting stuff.

Ben Barros

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

Research Canons For Property Law

PrawfsBlawg has a great new series of posts on the research canons in different areas of the law.  Here's an excerpt from Matt Bodie's post explaining the basics of the idea:

The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Unlike other disciplines, most law academics do not have an advanced degree in "law."  For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field.  It is only after comps that students go on to complete their specialized dissertation research.

Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise.  But it is left to the individual to get this knowledge.  Certainly, the J.D. provides a baseline, and mentors are helpful in providing further direction.  But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow.  Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?"  Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.

The Research Canons project is intended to fill this gap.

Property and Real Estate will be up for canonical treatment on Wednesday, 9/13.  [UPDATE: the property canons post is now up on PrawfsBlawg].  Property isn't the most cohesive of legal subjects, so I suspect the list will be all over the place.  I'll give this more thought over the next few days, but here are some of my candidates:

The Classics of the Moral and Political Theory of Property

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral"

Great Contemporary Work on Property Theory

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Ben Barros

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Property Rights in Endangered Species?

That's the subject of an article in today's NY Times.  Thom Lambert at Truth on the Market and Dave Hoffman at Concurring Opinions have good posts reacting to the article.

Ben Barros

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

Blumm, Becker, and Smith on Water Rights

Michael C. Blumm, David H. Becker, and Joshua D. Smith (all of Lewis & Clark Law School) have posted The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled on SSRN.  Here's the abstract:

Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights "reserved" from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts — comprised largely of elected judges — could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.

This study aims to begin to fill that gap by examining the results of six Western water right adjudications — five of which were decided by state courts — involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users.

The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements — and even state law — to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.

Ben Barros

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

Craig on Coastal and Ocean Ecosystem Serices

Robin Kundis Craig (Florida State University College of Law) has posted Valuing Coastal and Ocean Ecosystem Services: The Paradox of Scarcity for Marine Resources Commodities and the Potential Role of Lifestyle Value Competition on SSRN.  Here's the abstract:

Ocean and coastal ecosystems provide about two-thirds of the ecosystem services that make up the world's natural capital. Despite that fact, the political will to adequately protect these marine ecosystems in marine protected areas and marine reserves generally does not exist. Instead, regulation focuses where the markets focus: on commercial commodities demands for ocean and coastal resources. This traditional commodities-focused market-and-regulatory regime has proven inadequate to protect functional marine ecosystems, as the history of wetlands loss and fishery regulation failure makes clear.

This paper argues that neither the commodities market nor a private property regime is likely to strengthen the political will to protect and preserve marine ecosystems as a whole. Nor, given the paradigm of inexhaustibility, the failure to perceive marine resources as scarce, and the lack of public understanding about the importance of marine ecosystem services, is strengthened political will likely to follow from the numerous scientific recommendations that the United States protect about 20 percent of its ocean resources in marine protected areas and marine reserves.

Instead, this paper explores the potential of new markets for the lifestyle values of marine resources amenities to serve as proxy for a direct public demand for intact and functional marine ecosystems. Specifically, the paper argues that new consumer demands for recreational opportunities, tourism, and eco-living may provide sufficient use competition -- specifically, competition between commodities and amenities users -- to translate the new economic demands into a political will to better protect marine ecosystems and the services that they provide.

I've noted before that I think that the ecosystem services approach provides an important perspective for considering land-use and natural-resources issues.  Oceans present uniquely difficult problems in this area, both because of international law and because many ocean-based natural resources (at least the living ones) move around during their life cycles.  Craig's paper is an important contribution to the discussion of these issues.

Ben Barros

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

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College - School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for a decade at the intersection of democracy and ecology. The public is still led to believe that the “conservation” versus “preservation” of our discrete, bounded parcels of public land is the central political issue and that what must happen for one set of values or another to triumph is that one or another faction capture those lands parcel-by-parcel and put them under its preferred legal regime. Experts and activists have transitioned from this philosophy to the open-textured, inclusive notions of “ecosystem” and “adaptive” management on which everyone agrees in the abstract but not in application. The public’s faith in its pluralist administrative state is very much contingent upon its faith in professional expertise, though, even as this whole arrangement becomes increasingly incompatible with any truly “ecosystemic” approach to public lands. Indeed, while active management and “ecological restoration” are probably truer frames of reference for public lands today, the only way these can even possibly frame a progressive conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability. They are facing this dilemma most immediately in their several legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen different enabling statutes.

Ben Barros

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

King and Fairfax on Land Acquisition and Water Rights

Mary Ann King and Sally K. Fairfax (UC Berkeley) have posted Beyond Bucks and Acres: Land Acquisition and Water on SSRN.  Here's the abstract:

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions’ tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the “riparian mindset.” We also note some basic constraints on “just buying it” associated with these historic acquisitions of land-in-fee.

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements.

We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government’s enormous advantages in litigation are taken into account.

Part V offers some starting points for future discussion. We look at water trusts’ experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law. We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.

Ben Barros

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

Arguments in Clean Water Act Cases

The New York Times and Washington Post both have articles (here and here) on yesterday's arguments in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, two consolidated cases that go to the scope of federal authority to regulate wetlands under the Clean Water Act.  From the WaPo article:

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

Ben Barros

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