Charles Wilkinson

Robert Fischman recently posted "Wringing Wonder from the Arid Landscape of Law". The abstract:

Charles Wilkinson

Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance of exogenous preference accounting as a means of identifying the public interest. Instead, often employing methods from the humanities, Wilkinson promoted planning as a deliberative, value-shaping process for crafting resource management objectives. His scholarship of the past thirty years redefined the relevant inquiries for public land law scholarship. In particular, he established bioregionalism, time, culture, and wonder as place-building concepts essential for translating justice and equity into public natural resources decisions.

The river as legal person

Whanganui River

H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:

While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.

So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

London air pollution

The new issue of American Historical Review has a review by Christine Corton of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016). Corton writes:

Cavert looks at the early legal debates, many initiated by personal complaints from Elizabeth I and Charles I, aimed at limiting smoky industries located near the Royal Palaces. Charles II shared his father’s dislike of coal smoke, but “measures against it were limited, local, sporadic, and rearguard” (190), not least because Charles was more interested in projects outside the capital city in Windsor or Greenwich. Such preferences marked the failure of earlier attempts to limit smoky industries within London.

The situation changed gradually as local magistrates became more interested in cleaning London’s air to benefit health and to protect buildings. But these early attempts to legislate started a pattern that was to be followed during later centuries as attempts to reduce smoke failed to be passed into law. For many people, a major part of the problem was that the smoke pouring from workshops signified industrial success and full employment, just as smoke issuing from domestic chimneys registered prosperity and cozy domesticity, a relationship only hinted at in Cavert’s book.

Other, wealthier individuals also tried to limit the number of smoke-emitting industries located near their own dwellings. New developments in the west of London, such as Covent Garden, prohibited smoky trades from the outset in order to attract a higher class of resident. Urban settlements created for and by social and political elites partly explain why London’s East End suffered more from the West End’s smoke, as the vapors from the increasing number of domestic dwellings were blown eastward by the prevailing winds.

The law and species classification

The journal Isis recently published an article by Peter Alagona, "Species Complex: Classification and Conservation in American Environmental History". I heard Peter give a fascinating talk on this at a conference a while back, in which he explained that while scientists don't really have a good definition for what a species is, the law (e.g. the US Endangered Species Act) requires organisms to be classified into species, thus driving this seemingly "scientific" endeavor. The article abstract:

How does the classification of biological organisms shape efforts to conserve them? This essay addresses this key question through the scientific, administrative, and legal histories of steelhead and rainbow trout. Members of the diverse salmon family, these two fish have different life histories and physical appearances, but since the 1930s scientists have considered them the same species. Over the past 150 years, however, their histories diverged. Today, rainbow trout are bred by the millions in hatcheries and are among the world’s most common and widespread fish, while steelhead are listed as threatened or endangered all along the West Coast of the United States. Their remarkable story shows that conservation is not merely a political struggle over things that exist in nature; it is a perennial competition to prove the existence and define the very nature of those things that are the focus of such struggles. Biological taxonomy and classification are central to these debates, as they are to environmental history and the history of science more generally.

And some of the legal history in the article:

Multiple use

The latest Environmental History has a review by David Rich Lewis of The Size of the Risk: Histories of Multiple Use in the Great Basin by Leisl Carr Childers (U. Oklahoma Press, 2015). Lewis writes:

Leisl Carr Childers’s book appeared at an opportune moment, just as debates over federal management of western lands roiled the national news. The takeover of the Malheur National Wildlife Refuge in Oregon, the armed standoff over grazing rights at Cliven Bundy’s Ranch in Nevada, and the ensuing federal criminal prosecutions highlight the larger critique of federal authority in the West. Two-thirds owned by the federal government and perceived as an unpopulated wasteland that defied Congress’s raft of land disposal acts, the Great Basin is, in Carr Childers’s estimation, the “bellwether for federal land management policy” (p. 7). She explores how “multiple use” emerged in the twentieth century as a way to give the nation’s unclaimed public domain a human purpose, utility, and identity separate from its ecology. This book is not just a primer on land management policies—although it certainly provides outstanding coverage of that—but one deeply rooted in cultural and environmental history, using the tools of oral and public history to trace the intersecting activities of people and their different land uses as these federal policies evolved over time.

Multiple-use management begins with the 1934 Taylor Grazing Act that allowed western ranchers to continue their “accustomed use” of the range without purchase. Having already developed their own water sources and rights, the creation of grazing districts legitimized ranchers’ activities and made the surrounding public range their liminal property. Ranchers reluctantly acceded to the political organization and fees, assuming their accustomed use rights would endure as the activity best suited to these arid lands. At the same time, progressive land managers saw grazing as just one of many possibilities, a stop gap until higher uses (or disposal) of the land occurred. Ranchers, then, assumed an unseen risk in a policy world dictated by different visions of their land and a belief in use for the greater good. 

Environmental law books

Dave Owen at Environmental Law Prof Blog recently compiled a list of books on environmental law recommended by other professors for incoming law students with an interest in the field. The results are all histories in one way or another:

1. The favorite: Jonathan Harr's A Civil Action.
2. The storytellers: Zyg Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River and Oliver Houck's Taking Back Eden: Eight Environmental Cases that Changed the World.
3. Houck's and Richard Lazarus's Environmental Law Stories.
4. Lazarus's The Making of Environmental Law.
5. Gerald Stern's The Buffalo Creek Disaster.

This is obviously a very American list and one with a very recent focus. Anyone have any other suggestions?

Offshoring environmental law

The latest issue of Environmental History just arrived, leading with an environmental-legal history article, M.X. Mitchell's "Offshoring American Environmental Law: Land, Culture, and Marshall Islanders’ Struggles for Self-Determination During the 1970s". The abstract:

This article explores the impact of environmental law in US-controlled Micronesia. Historians have suggested that US environmental legislation and legal activism during the 1960s and 1970s often overlooked issues of environmental racism and injustice. This article establishes the importance of these emerging environmental laws for Marshall Islanders living under American rule and subjected to the harms of nuclear weapons testing. In 1972 the displaced people of Enewetak Atoll—a former nuclear test site—sued the United States hoping to stop a new program of conventional weapons testing on their badly contaminated ancestral atoll. The capacious concept of the environment used in the National Environmental Policy Act of 1969 and the statute’s ambiguous territorial reach offered islanders important new opportunities to articulate their environmental values and to further their struggles for self-determination over ancestral lands and waters. This article argues that environmental law transcended the artificial territorial boundaries between the United States and its Pacific dependencies, opening up an important new venue of negotiation and conflict over the scope and environmental footprint of US offshore power.

Test of hydrogen bomb at Enewetak, 1952

Parks and Jim Crow

H-SHGAPE recently published a review by Nancy Murray of William O'Brien's Landscapes of Exclusion: State Parks and Jim Crow in the American South (U. Mass. Press, 2015). Murray writes:

Advocates for wilderness recreation viewed national parks as a means to prevent black criminality. As early as the 1920s, officials argued that recreational areas and parks for African Americans would help to address stereotypical problems of crime and juvenile delinquency. In October 1925, while introducing a speaker at the Twelfth Recreation Congress in Asheville, North Carolina, Chairman Robert Lassiter stated that, “with proper attention to recreational facilities, they [African Americans] will make good citizens. Improper attention to that, and neglect and abuse of it, will make a criminal population” (p. 34). These assumptions about black criminality knew no color line. The following year, Ernest Attwell, director of the Parks and Recreation Association (PRA) Bureau of Colored Work and a Tuskegee Institute graduate, reiterated Lassiter’s views.

*****

O’Brien’s book spans a period of time beginning with the origins of state park development in the 1930s to the turbulent civil rights era in the 1960s and relates how the development of state parks reflected the political and racial conflicts of these decades. Throughout, Landscapes of Exclusion emphasizes how local, state, and federal agencies adhered to what was called “customary” practices to justify using public funds to build and maintain segregated state parks. By the 1930s and 1940s, even as state park officials acknowledged African Americans’ need for state parks, Jim Crow laws and the hostility of white residents meant that most southern states refused to provide them.

*****

After World War II, in the face of mounting challenges to segregation, southern states proposed a more expansive network of segregated parks for African Americans and the leasing of whites-only parks to private entities in an attempt to prevent integration. Despite these attempts to preserve Jim Crow, civil rights activists nonetheless persisted. In 1951, four African American beachgoers were denied entry into Seashore State Park on Cape Henry in Virginia. When attorneys from the National Association for the Advancement of Colored People (NAACP) filed a lawsuit, the Virginia Department of Conservation offered to build a park for African Americans near Seashore State Park with similar amenities. When the NAACP rejected this offer, they filed suit in Tate v. Department of Conservation.   

Yet more forest law

The always vigilant Rechtsgeschiedenis Blog recently posted on the Oxford Libguide on English legal history, noting that it surprisingly has a prominent section on Forest Law. The guide explains the subject:

Generally used to designate the legal regime following the Norman conquest (or at least from temp Henry I 1100): "... the subjection of ... vast tracts of forest land to an alien and oppressive "forest law" protecting the royal hunt" ...[ Baker, Introduction to English Legal History (4th edn 2002), 12[

It raised considerable problems of rights of ownership: for example, it was possible to be the legal owner of land within the designated area of a forest, and yet not be able to "harvest" its produce, either by hunting wild game or felling timber.

Already such a source of grievance to be the subject of clauses in the first attempt to limit the royal power of King John, by 1217 had become the subject of a separate Charter (of the Forest). The arrival of this shorter charter was what lead to the Magna Carta being so called.

The forest law was maintained by specific officers (such as wardens, verderers, and foresters) and with two principal courts hearing charges of breach of the laws, the courts of attachment and the forest eyres.

Among the online resources noted by the guide are John Manwood's [apparently his real name] 1598 Treatise and Discourse on the Lawes of the Forest [the 1717 edition is here], Jane Winters's essay on Forest Law, and the above image of the 1225 Forest Charter granted by Henry III, one of three surviving originals.

For more on British forest law, see here.

Masters/Doctoral/Postdoctoral fellowship: Water Law in Mandate Palestine

Please pass this on to anyone who might be interested:

This call is for a single one-year fellowship (2017-2018) for a graduate student or postdoctoral fellow wishing to work on the history of water law in Israel/Palestine or a related topic. The fellowship is part of the Israel Science Foundation-funded research project headed by Dr. David Schorr (Tel Aviv University Faculty of  Law): "Private and Public Water Rights in Mandate Palestine and Early Israel".

Eligible candidates will be one of the following:

• an applicant for an Ll.M. or Ph.D. degree TAU Law's Zvi Meitar Center for Advanced Legal Studies (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program);
• a student currently studying for one of the above degrees;
• a candidate for a research degree in another university or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;
• recent recipients of a doctoral degree (not from TAU) wishing to conduct post-doctoral research at TAU Law.

The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds. TAU students will also receive a tuition waiver. No funds will be provided for travel or lodging, though administrative assistance may be provided for both. The fellow may re-apply for funding in subsequent years, university rules permitting.

The fellow will be expected to be in residence in the Tel Aviv area and participate in weekly workshops and seminars at TAU.

Interested individuals should send the following documents (in English or Hebrew) to berg@post.tau.ac.il by 15 May 2017:

• cover letter describing research agenda and its relevance to Dr. Schorr's research project
• c.v.
• transcript of grades from last degree
• 2 letters of recommendation sent directly to berg@post.tau.ac.il
• writing sample

Notification of the fellowship award will be made quickly.

Please address any inquiries to berg@post.tau.ac.il.

More on the Antiquities Act

Bears Ears National Monument designated by President Obama

Following up Sunday's post on the Antiquities Act, I'd like to note an interesting post on the topic by Nick Bryner at Legal Planet. There's a lot of straght legal analysis, but a large dose of legal history as well. Bryner takes on an AEI "white paper" written by John Yoo and Todd Gaziano:

First, Yoo and Gaziano seek to re-frame the history and past judicial decisions on the Antiquities Act in order to make an argument about the purpose of the Act. The authors raise the argument that the Act has been “abused” for the purpose of effectively creating new, large national parks, and that the large size of some monuments designated throughout the Act’s history runs counter to the statute. Their claim purports to be rooted in textual analysis of the Act, but relies on an assumption due to the context of “earlier and contemporaneous bills” that would have “limited monument designation to 320 or 640 acres (page 3). The Act instead provides that monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Yoo and Gaziano posit that the lack of a size limit “provide[s] flexibility for special situations and not to allow a million-acre designation” (page 3). Contemporaneous history, however, also points to officials in the Interior Department who favored broad empowerment of the President to set aside public lands, and suggests that these officials had a hand in adding the Act’s more expansive language of “other objects of historic or scientific interest” to meet this goal. No court has ever invalidated a presidential designation of a national monument — from the Grand Canyon under Teddy Roosevelt (its status as a national monument, prior to conversion to a national park, was upheld by the Supreme Court against mining claims in Cameron v. United States), to the Giant Sequoia NM under Clinton (upheld by the DC Circuit in Tulare County v. Bush).

*****

The purpose and context of the Antiquities Act, including congressional action and inaction over the past century, suggest that a one-way ratchet — presidential designation, with significant reduction or revocation only by Congress — is exactly what was intended. Congress was concerned that historical, archaeological, and natural or scenic resources could be damaged or lost, and devised a delegation to the President to act quickly when needed to preserve those resources, leaving Congress the opportunity to deliberate on a longer-term solution for the area in question, if it so decided. On 10 occasions, Congress has reversed those presidential decisions; far more often, it has concurred or built upon the President’s actions by expanding monuments or re-defining them as national parks. This is how the process is supposed to work. Antiquities Act designations do not, as critics say, cut off debate or circumvent the democratic process. They simply alter the status quo in favor of conservation — a precautionary approach. If Congress studies the matter and decides to change or abolish the monument to allow for different uses of the land, it has the power to do so through the usual legislative process; until that action is taken, objects of historic or scientific interest are protected.

The Antiquities Act

Grand Canyon National Park

Current politics continues to provoke interest in the history of environmental law. John Leshy's and Mark Squillace's recent column in the New York Times on "The Endangered Antiquities Act" notes:

The act has been used more than 150 times, by nearly every president, Republican and Democrat, from Theodore Roosevelt on, to protect hundreds of millions of acres for the inspiration and enjoyment of present and future generations. Five of the nation’s 10 most-visited national parks — Grand Canyon, Zion, Olympic, Teton and Acadia, each attracting millions of people a year — were first protected by presidents using the Antiquities Act.

*****

Some dislike the law because presidents have tended to use it late in their terms to sidestep opposition to their designations. But would anyone today seriously question the wisdom of Theodore Roosevelt’s using the act to protect what is today the core of Olympic National Park in Washington two days before he stepped down in 1909? Or Herbert Hoover’s safeguarding what are now three national parks, including Death Valley in California (1.3 million visitors last year), in his last three weeks in office in 1933? Or Dwight D. Eisenhower’s setting aside what is now the Chesapeake and Ohio Canal National Historical Park (five million visitors last year) two days before John F. Kennedy’s inauguration in 1961?

Because these presidential actions change the status quo and prevent development, they have sometimes incited local opposition. But over time, the growing popularity of these places often led Congress to recast them as full-fledged national parks.

That’s what happened after Franklin D. Roosevelt established the Jackson Hole National Monument in 1943 on land fronting the magnificent Teton mountain range in Wyoming. Outrage ensued. Senator Edward Robertson of Wyoming called the president’s action a “foul, sneaking Pearl Harbor blow,” and locals led a cattle drive across the new monument in protest. But by 1950, the monument’s benefits to local life and the economy persuaded Congress to incorporate it into Grand Teton National Park, and President Harry S. Truman agreed. In 1967, Cliff Hansen, a leader of the cattle drive protest who became a United States senator, acknowledged he had been wrong to oppose Roosevelt’s action. He called the expanded Teton Park one of his state’s “great assets.”

More on the current debate over the law soon.

Water pollution lawsuits

This Day in Water History recently reproduced a 1916 article from the Municipal Journal:

Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.

Michael McGuire comments:

The typhoid fever epidemic in Milwaukee was caused by a city employee turning off the chlorine disinfection system for about 10 hours. The epidemic resulted in 513 cases and 59 deaths from typhoid fever. As filtration and chlorination became more widely installed to protect water supplies, it became harder for cities to claim that contaminated water supplies were not responsible for typhoid fever deaths. The combination of engineers wanting to do the right thing and lawsuits resulted in an accelerated introduction of the new technologies.

Private property in riparian rights systems

The issue of private property in water is a well-studied one, but usually in the context of systems based on appropriative rights. This Day in Water History reproduces a 1915 article from the Municipal Journal (I'm assuming it's not an April Fools joke) that shows that riparian-rights systems, usually thought of as common-property regimes, could be raise the same privatization-related issues typically identified with appropriative systems - overuse, concentration, and demands for public control:

Boston, Mass.-That the state’s water resources are being gobbled up by private interests and that unless some change of policy is immediately instituted Massachusetts will have to face a water famine is brought to the attention of the legislature in a report on the conservation and utilization of waters by the state board of harbor and land commissioners. The amount of water power used by manufacturers has increased enormously in the last few years. For instance, proprietors of Locks and Canals in the city of Lowell consumed in 1912 about 11,620 horsepower, developed from the Merrimac river, according to statistics of the United States Bureau of Corporations. A survey in 1915 by the harbor and land commissions shows that these same Locks and Canals now use 29,911 horsepower. The water used and wasted by municipalities is also mentioned in the report. The commission urges that a definite plan be laid out by the state for the control and conservation of the water resources. The Merrimac river is capable of further development, according to United States Engineer C. C. Covert of the Geological Survey, who is quoted as saying that, although the most favorable opportunities for storage on the Merrimac are being utilized, there are still many unutilized reservoir sites available. The commission on harbors and public lands holds that unless the state within a reasonably short time asserts a definite policy of control, the waters in the rivers and natural streams, which belong to the people of the whole state will be devoted entirely to private uses. In contrast to the situation in Maine, New Hampshire, Vermont, New York and the province of Ontario, where a conservation program is now under way, nothing at all has been done in Massachusetts. The control which exists of the water resources is divided among four or five different bodies, no one of which has complete authority. In the year 1912 the United States Bureau of Corporations made a tabulation which showed that 130,620 horsepower was owned by the larger companies in Massachusetts. The harbor and land commissions, canvassing the same people, have discovered that within the three years the total horsepower developed has increased to 264,152, Massachusetts manufacturers are now paying nearly $26,000,000 a year for the purchase of fuel for power purposes. Intelligent plans to avoid freshet damages and to store water for irrigation are also urged.