Forest law

from Livre de la Chasse

Moving from forests in Mexico to English forests, the latest issue of the William & Mary Bill of Rights Journal, dedicated to Magna Carta, has a couple of articles on medieval forest law in England (thanks to Legal History Blog for noting it). The first is Ryan Rowberry's "Forest Eyre Justices in the Reign of Henry III (1216–1272)" (for the second, see here). Rowberry notes that scholars have estimated that forest jurisdictions covered nearly one-quarter of England by the thirteenth century, possibly more.

 As there's a lot of interesting stuff here, I'll just quote a bit (omitting footnotes, text in brackets is my own). First of all, to clarify what a medieval "forest" was:

‘Forest’ in medieval England denoted a defined area of unenclosed land within which wild game, principally deer, along with wide swathes of its habitat were protected by forest laws for the benefit of the king. Medieval forests, however, could include “not only woodland, but also heath, pasture, meadow, and arable land, and even hamlets, villages, and townships.” Importantly, forest jurisdictions in England unlike those in Normandy could, and often did, extend outside the king’s own demesne land (the crown’s landed estate) onto privately held lands, acting as a type of economically restrictive land-use overlay on areas that remained subject to the common law as well.

Forests and revolution in Mexico

After recent discussions of forests and revolution in France, we now turn to a similar topic in Mexico. H-LatAm recently posted Timothy Lorek's review of Christopher Boyer's Political Landscapes: Forests, Conservation, and Community in Mexico (Duke UP, 2015). Some highlights:

Boyer begins in the 1880s and follows the thirty-year reign of Porfirio Díaz and his embrace of foreign capital investment and scientific expertise, exercised by the regime’s cadre of científicos. The rapid acceleration of land titling (the so-called disentailment of communally owned property) and privatization of terrenos baldíos (unoccupied public land) and resources spurred the growth of commercial logging to meet the demands of the expanding newsprint industry and railroads. Observing the growing corporate commodification of timber resources, Boyer shows how members of the intellectual elite organized for conservation of the woodlands through a “regime of scientific management,” premised on similar initiatives in Europe and the United States (p. 30). Chief among these early conservationists was Miguel Ángel de Quevedo, whose long career in public policy withstood political transitions and revolution. Quevedo and the early forest service viewed conservation as a scientific and rational practice best orchestrated by urban Mexico City elites rather than the inhabitants of the woodlands themselves. What little consideration his urban foresters did give to rural peoples such as the Rarámuri of Chihuahua or the Purépecha of Michoacán, Boyer argues, was to criticize them as backwards, wasteful, and an impediment to rational management.

Chapters 2 and 3 chart the rise of “revolutionary forestry.” A rich historiography exists on the Mexican Revolution (1910-17) and on the subsequent agrarian reform which continued until 1992. Article 27 of the constitution of 1917 cleared a path for two legal channels for securing land rights: the restitution of communal land (restauración) or the granting of parcels (ejidos) of public land for usufruct use (dotación). And yet, Boyer points out, few scholars have noted Article 27’s significance in mandating the state’s right to manage natural resources on behalf of the nation. This charge led to the postrevolutionary state’s partnership with Miguel Ángel de Quevedo and his determined application of rational conservation in forestry. Yet Quevedo and other conservationists’ preferences for a state-regulated management bureaucracy complicated indigenous land rights supposedly protected under the postrevolutionary state’s social agenda. For example, the Forest Code of 1926 required ejido and native communities to form producers' cooperatives whose timber harvests were guided by scientific management plans approved by the new forest service. Other elements of the code, such as the ban on hatchets for felling, had the arguably unintentional effect of restricting native access to cutting timber in favor of commercial operations. As Boyer shows, the new bureaucratic hurdles presented challenges for ejidatarios and native villagers in Chihuahua and Michoacán, who struggled to assert their rights over unscrupulous outsiders and, when that failed, resorted to clandestine logging and the black market. 

The conservative as environmentalist

Though conservatism is today associated with anti-environmentalism (a trend with an interesting history); see also here and here), a growing body of work is digging into conservative and religious roots of American environmentalism. Last year we noted Dan Farber's post on American conservatism and environmentalism at Legal Planet; now comes the article: "The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century" (thanks to Dan Ernst at Legal History Blog for noting it). The abstract:

Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax.

This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil fuel industry. These forces may be abating, opening the door for a more vigorous debate about environmental policy within the conservative movement and in the broader public arena.

Race and public lands

A recent issue of Environment and History has an article connecting issues of conservation and race, Harald Witt's "Indigenous Trees and Forests: Contradictions, Conflict and Conservation in Natal and Zululand (1900–1960)". The abstract:

At the turn of the nineteenth century, it was estimated that nine-tenths of the identified forests in Natal had been permanently alienated from the Crown through their incorporation into private lands and Native Trust Lands. The entrenchment of the political power of white land-owners in the twentieth century ensured that official attempts at restraining private land-owners from destroying indigenous forests on their lands were doomed to fail. Trust forests, as quasi state forests, were however, more accessible to Forestry officials, who remained convinced that the management and ultimately preservation of these forests could best be controlled and managed by themselves. This article examines the manner in which the conservation and administrative control of the various forests on Trust lands became the subject of dispute between various organs of the state in the first half of the twentieth century. This contestation was characterised, on one level, by a general shift from a conservationist and utilitarian approach in regard to the management of indigenous forests to one that was far more preservationist in definition while, at the same time, illustrating fierce administrative tensions between a relatively compassionate Department of Native Affairs and a Department of Forestry that subscribed to a more racialised agenda.

 Coastal Forest Dunes at Sodwana, Zululand (Carlos de Resende)

Equal access to justice or to obstruction?

As environmentalists deliberate the extent to which the courts can be used to stymie the anti-environmental agenda of the current American regime, the latest issue of Environmental History has a book review by Steve Vanderheiden of Lowell Baier's Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America's Lands, Endangered Species, and Critical Habitats (Rowman & Littlefield, 2016). Baier's book apparently makes a strong argument, and Baier is appreciative but critical:

Adopted in what Lowell E. Baier describes as “the earliest legislative manifestation and harbinger” of the Reagan Revolution (p. 79), the 1980 Equal Access to Justice Act (EAJA) authorizes reimbursement of legal fees for prevailing parties suing the government. While originally designed to serve a deregulatory agenda that would limit state power over business and persons, the EAJA has frequently come to support environmental groups pressing the federal government through the courts for greater environmental regulation, rather than less. According to Baier... the litigiousness of these groups has paralyzed the administrative state and eroded its capacity to manage the nation’s resources, to the detriment of the environment that such groups set out to protect.

Baier, as a lawyer and historian, is sharply critical of this policy evolution of the EAJA, through which courts and civil society groups came to play an increasing role in environmental policy, challenging the actions or omissions of resource management agencies. Part narrative history of the development, passage, and later evolution of the act, and part polemic against the US environmental movement and its legal strategy, the book is bound to attract two different sets of readers. Historians and other scholars of US environmental politics will find a scrupulously narrated account of the political milieu from which this legislation emerged, along with its evolution over recent decades, in the book’s first four chapters. Assembled from an impressive array of interview notes and archival texts, these accessible chapters detail the original objectives for and later impacts of this important statute.

More polarizing is the polemic that follows, with Chapters 5 and 6 painting the majority of organized environmental groups with a crude and uncharitable brush, Chapters 7 and 9 launching a relentless series of accusations against environmental litigants and their legal strategies, and Chapter 8 offering an alternative to this kind of adversarial politics in the form of “cooperative conservation,” through which polluting industry and the state are touted as better able to protect the environment in the absence of legal accountability to civil society groups....

Domestic law instead of international agreements?

The latest issue of Water International published an article by Marco Verweij, "The remarkable restoration of the Rhine: plural rationalities in regional water politics". First, the abstract:

The restoration of the Rhine basin is widely viewed as an exemplary case of international water protection. The river’s clean-up has been characterized by a number of puzzling developments. These include chemical companies reducing their toxic effluents by more than legally required, and riparian governments quarrelling internationally over environmental measures that each of them were undertaking domestically. It is argued that the plural rationality (or cultural) theory pioneered by Dame Mary Douglas offers an empirically valid explanation of these remarkable processes.

The article tells an interesting historical story, with implications for current international environmental issues such as climate change. An excerpt (citations omitted):

The efforts to stop the environmental degradation of the Rhine between 1963 and 1986 were paradoxical. The attempts to do so with the help of international agreements were ineffective at best, and counterproductive at worst. Yet, simultaneously, the domestic efforts to clean up the Rhine were quite effective in each riparian country. 

Environment, history, and the US Supreme Court nomination

All history may be contemporary history, but yesterday's post had present concerns front and center. Continuing the trend, today's post is inspired by the nomination of Neil Gorsuch to the US Supreme Court. Others have attempted to divine how Gorsuch would rule on environmental issues, but here we'll take a historical tack, looking back at some earlier posts dealing with environmental issues in the US Supreme Court. Some of the topics covered:

• The environmental legacy of the late Justice Scalia, whom Gorsuch has been nominated to replace;
• Justice Oliver Wendell Holmes and the environment;
• Justice Robert Jackson and property in water (Jackson (right, at Nuremberg) is also being mentioned as having held that seat that Gorsuch is being nominated to fill, though this seems to me a meaningless claim);
• TVA v Hill and Conservative anti-environmentalism;
• Oral arguments in environmental cases in the court;
• Jonathan Cannon's book on environmental issues in the court;
• Water litigation (here, here, and here);
• Ownership of wildlife;
• Land use (here and here);
• Regulation and planning;
• Supreme Court decisions of the 1960s holding water pollution illegal led to the a federal permitting program for discharges into water;
• Environmental issues in international and native treaties (here, here, and here);
• Takings and substantive due process;
• Sarah Milov on environmental history and capitalism.

Nature and anti-immigrant politics

With great timing, the latest Environmental History has a review by Sterling Evans of John Hultgren's Border Walls Gone Green: Nature and Anti-immigrant Politics in America (U. Minnesota Press, 2015), reminding us that current events have historical (and environmental) roots. (I note that it's frightening how far the "racial logics" that are "socially acceptable withing mainstream political discourse" (see below) have shifted between the book's publication two years ago and the Trump Era.) Some excerpts:

This highly recommended book focuses on the nature of building US-Mexican border walls, the racism that has accompanied such policies, and the anti-immigration fervor that has followed within some environmental organizations. The term that John Hultgren relies on to discuss this issue is “environmental restrictionism,” and he discusses its efficacy very well in Border Walls Gone Green.

Hultgren, a political scientist, suggests the “central thesis” of the book is that “nature is increasingly being deployed as a form of walling—providing a subtle means of reinforcing ‘territorial’ borders without having to revert to racial and cultural logics that are no longer socially acceptable within mainstream political discourse” (pp. 1–2). That is a meritorious thesis to pursue in this study and one that Hultgren works to prove by the end of the book. “Nature, in this sense,” he posits, “provides a way for immigration restrictionists to expand their alliances beyond the far right while still maintaining the support of nativists,” a scenario that he argues is hardly new with “American greens” (p. 2). For theoretical background he provides some historical context from the anti-immigration stances of members of Earth First!, the Sierra Club, and a variety of environmentalist writers and activists. Thus he unpacks the connections between the “nature” of restrictionists and “narratives of political community” in this “emerging form of territorialization.” In other words, his goal is to shed “light on the discursive and institutional pathways through which nature is subtly woven into exclusionary political projects” (p. 3). In a larger sense, Hultgren’s point is to draw attention to “the complexities of natural-cultural interconnection,” especially how the environmental movement has been guilty of using “nature’s perceived location within progressive politics … to be used for exclusionary purposes by a variety of actors who seek to naturalize their (usually privileged) location within the political community while marginalizing others” (p. 5). 

For more on this issue, see here and here.