Privatizing water and fish in colonial India

Devika Shankar's article on property in water and fish in India is now also a blog post at Past & Present. Shankar explains that her article reflects 

a close analysis of over 10 important and highly cited cases from different parts of British India in which judges deliberated on whether flowing water and fish could be treated as private property. Starting with a significant set of cases relating to the planting of stakes in the sea off the coast of Bombay, the article then primarily looks at cases involving rights over rivers in the fluid landscape of the Bengal delta. The article not only highlights the enduring confusion surrounding the status of water in colonial Indian law, but also looks at the different ways in which judges interpreted roman law and precedents from English common law while reaching their judgments. After reaching a variety of conclusions, by the 1880s high courts had begun to simultaneously make room for unprecedented private rights over flowing waters in colonial India while rendering these rights largely redundant by insisting that fish in these waters could not be counted as property until they were caught. The conflicting pull of these judgments however began to create serious problems in Bengal where fishing rights were considered to be especially valuable. It was in order to overcome this impasse that the Bengal government ultimately passed the Bengal Private Fisheries Protection Act in 1889 granting landholders significant rights over fish in rivers across the province. It would do so by significantly strengthening the kinds of private rights that could be claimed over water, and inaugurating a novel category of “private waters” in tidal waters in Bengal and other parts of India. By tracing the arguments and logics that ultimately paved the way for this act, this article highlights the importance of recognizing colonial India, and especially Bengal as an significant site for experimentation with new forms of private property rights over flowing waters.

Charley Brown, Illustrated Guide to the South Indian Railway (1913)

More on property in water and fish in colonial India here.

Weak states and the commons

Vincent Geloso and Félix Foucher-Paquin have posted "Weak States and the Commons: Fisheries and Economic Development in the Gaspesian Peninsula circa 1830". The abstract:

The inefficiencies of common property fisheries are well-known to economists. To avoid over-exploitation, they propose multiple forms of government solutions like taxes, quotas and the enforcement of property rights regimes designed to avoid over-harvesting. However, can there be efficient arrangements under statelessness or in the presence of weak states? One such example is the Gaspesian Peninsula (in the Canadian province of Quebec) during the first half of the 19th century. There, a single firm (the Charles Robin Company) came to dominate the market and it was able to effectively to restrict entry. In this paper, we unveil that it was able to do so by reducing the prices of imported goods that it would give to local fishermen in exchange for a part of their catch. This had the effect of deterring fishermen to contract with other merchants as well as deterring other merchants from entering the market. It also had the effect of making the region, contrary to what historians depict, richer than most regions of Canada at the time. We take this as an example of the ability to deal with commons problems in the presence of weak states.

Alexander Henderson, Causapscal River (1872-1875)

More on nature versus the common law: American judges on American rivers

As I mentioned in a post last week, the first topic covered in my article "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World" is the question of whether the water, bed, or other resources of a non-tidal river belonged to the riparian landowners or to the state or public. 

While the civil law (for example Article 538 of the Code Napoleon) distinguished between private and public rivers based on tests of navigability and floatability, the English common law adopted a slightly different distinction : Tidal rivers were held to be the property of the Crown, while rivers and lakes above the reach of the tide were the property of the adjoining landowners, with each riparian owner owning the river from the edge of his dry land up to the median of the water body ("usque filum aquæ" or "ad medium filum"). Non-tidal but navigable bodies of water typically were subject to a public right or servitude of navigation, while the water, the submerged land, and other resources (such as fish) belonged to the riparian owners.

These rules were relatively uncontroversial in England, but in British colonies and the new United States they were often felt to be inappropriate to the environmental reality of other continents, in which rivers might be kilometers wide in some portions and navigable for thousands of kilometers above the reach of the tides, while freshwater lakes might bear a closer resemblance to seas than to the small lakes of England. In this context, a rule under which all non-tidal waters were private seemed problematic to many.

The first reported case in which the tension between the received law of England and the local environment arose was the 1807 Pennsylvania case of Carson v Blazer, in which a landowner along the Susquehanna River, near Harrisburg, demanded compensation from some fishermen who had fished shad from the river alongside his land4. As the Susquehanna at this point was navigable but not a tidal river, the common law rule seemed to be clear – the river, and the right to fish, belonged to the riparian owners. But Chief Justice William Tilghman, presiding over the trial, thought otherwise, distinguishing between the geographies of England and Pennsylvania :

Class and conservation

Recently published in the American Journal of Legal History is William B Meyer's "Class, Conservation, and the Police Power in the American Gilded Age: The Origins of Lawton v. Steele". The abstract:

The leading police power case of Lawton v. Steele, decided by the US Supreme Court in 1894, offers insight into the question of judicial class bias during the decades following the Civil War. Conflict arose in rural northern New York State over restrictions on livelihood fishing by nets imposed to protect sport angling by affluent tourists. Opposition to the restrictions was grounded in a producerist worldview and class consciousness. The matter reached the courts in a challenge to state laws permitting the summary destruction, without legal process, of nets placed illegally. Seemingly prohibited by the Fourteenth Amendment and previous case law, such destruction was upheld by a Supreme Court divided along ideological lines, correlating with the justices’ Whig or Jacksonian antecedents. The dissenters, those of Jacksonian sympathies, argued unsuccessfully against the challenged laws.

Winslow Homer, Adirondack Lake (Blue Monday) (1892)

Water, fish and property in colonial India

Last week I enjoyed attending on online event of the Asian Legal History Seminar, at which Devika Shankar presented her article, "Water, Fish and Property in Colonial India, 1860–1890", recently published in Past & Present. I recently covered similar issues in my article, "Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World", published last summer in Clio@Themis, though I totally missed the cases discussed by Shankar, and she comes at the topic from a wholly different angle.

The abstract of Shankar's article:

Almost exactly a hundred years after the Permanent Settlement of 1793 revolutionized property relations in Bengal, a far less studied legislation would subtly extend the rule of property to include the province’s waters. Bengal’s Private Fisheries Protection Act 1889, which is usually regarded as having been motivated by conservationist or economic concerns, was in fact an attempt to resolve intractable legal problems surrounding the status of flowing waters and fish that had confounded judges and colonial officials in India for decades. Could water be owned like land? And could fish swimming in open waters be claimed as property? These questions would give rise to a number of important disputes in colonial India in the late nineteenth century, during a time associated with unprecedented changes in the agrarian economy. Coinciding with other legal manoeuvres that increasingly helped to render water as property in other parts of the world, the Private Fisheries Protection Act and important judgments that preceded it helped to create exceptional private rights over flowing waters in colonial India. Turning to these developments, this article examines the ways in which judges attempted to resolve contradictions generated by water’s very materiality in an economy that rested so heavily on property.

Devika Shankar, A line of fishing stakes on the Malabar coast, July 2018

The New England river commons

H-Environment recently published Zachary Bennett's review of Erik Reardon's Managing the River Commons: Fishing and New England's Rural Economy (U Mass Press, 2021). From the review:

After more than two centuries of damming and polluting their rivers, Americans are reversing course. Dams are coming down and the migrating fish that astonished early European explorers are returning.... Although rivers are coming to resemble their pre-industrial state now more than ever, few serious studies of early American waterways exist. Erik Reardon shows that these struggles to preserve riverine ecosystems are much older than river restoration advocates may have considered...

*****

The first two chapters establish the importance of river fisheries in indigenous and early colonial communities, arguing that both created sustainable common-use practices to protect fish. Reardon quotes heavily from other secondary sources and his arguments echo the likes of Jeffrey Bolster who have shown that colonists severely depleted fisheries immediately upon their arrival. Reardon effectively demonstrates that colonists both noticed that decline and realized they needed to enact conservation measures at least a full century before industrialization.

Chapter 3 reads as a composite biography of four river fisherman from Maine to Rhode Island who lived at the turn of the nineteenth century.... Their way of life came under considerable threat when commercial fishing practices entered rivers in the nineteenth century that netted the salmon and shad for sale in distant markets and enriched an emerging merchant class. Reardon shows that this class of farmer-fishermen ultimately turned to the state to punish unsustainable fishing practices and preserve rivers as traditional commons space.

Historic Spanish conservation laws

The US Library of Congress's online Herencia collection, containing royal decrees, papal bulls, legal opinions, judgments, and royal orders from Spain from the 15th through the 19th centuries, has recently been running a crowdsourcing project to review transcriptions of the historic documents.

Two collections that might interest readers of this blog are the collections of laws and statutes on agriculture, conservation, hunting, and fishing, and that on disease and public health law.

Royal Order of December 12, 1748 concerning the conservation of forests and plantations (LOC)

Fishing rights and colonial government

Shourya Sen and Richard Adelstein recently posted "Fishing Rights and Colonial Government: Institutional Development in the Bengal Presidency". The abstract:

We examine the evolution of fishing rights in colonial Bengal through a series of cases heard at the Calcutta High Court in the 1880s and culminating in the passage of legislation in 1889. We posit an implicit relational contract between the colonizing British and the landowning class in colonial Bengal as a way to understand the concurrent evolution of fishing rights and institutions of governance in the region. The system of incentives created by this contract determined the development of fishing rights at a crucial moment in the history of colonial Bengal and, more broadly, became a primary mechanism of institutional change in the region. The analysis also shows the Calcutta High Court to have acted, albeit in vain, as a truly independent judiciary.

Macchi, a Muslim caste of fishermen, from Tashrih al-aqvam (1825)

The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:

Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

The legality and legitimacy of Japanese whaling - Part II

[Second and final part of a guest post by Geoffrey Wandesforde-Smith - Part I is here.]

The second point to take away from Arch’s book is that when organized whaling became established in early modern Japan, under the watchful eye of domainal lords (daimyo), who could decide who had jurisdiction over particular whaling areas, or over bodies of whales either washed up on shore or brought to a particular shore for processing, regulation was a way of dealing with the local problems of particular businesses, and of their interrelationships, and of the ways those businesses could benefit the domain through fee exactions, as a kind of tax-like income for the domain. It was not about ensuring the continued availability of whale meat as a food source. Indeed, when it took hold and expanded during the Tokugawa peace, Japanese whaling was not primarily about food. It was about profit and about ensuring the continued supply of a wide range of whale products. Sutter is eloquent on this point:

Workers using windlasses to pull sheets of blubber off a whale for processing in the sheds behind.
Courtesy of the National Diet Library of Japan.

Whale meat, which today sits at the heart of Japanese claims for the (legality and legitimacy of) … whaling’s deep cultural importance, was the least of it. Arch shows that whale meat, either fresh or salted, simply did not travel well and was thus of minor dietary importance during the early modern period. But whale oil served as a vital illuminant, other whale products helped the Japanese fertilize and work their fields, and, in one of this study’s most surprising insights, we learn how whale oil was also widely used as a pesticide that allowed the Japanese to intensify rice culture [p. xi].

And, again, Arch herself is more pointed:

The legality and legitimacy of Japanese whaling - Part I

[Sorry for the continued silence, but thanks to Geoffrey Wandesforde-Smith for pitching in with this two-part book review!]

At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.

Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].

Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].

But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.

The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].

If the validity of a sustainable take were ever to be established beyond a reasonable scientific doubt, the theory further holds that Japan would be able to resume commercial whaling in conformity with the 1946 International Convention for the Regulation of Whaling, which entered into force in 1948. Perhaps other countries that have given up whaling since the 1986 moratorium went into effect would do the same, although most observers of the IWC would consider that very unlikely. If Japan’s theory is ever to translate into practice, then much obviously depends not only on the scientific validity of Japan’s NEWREP-A research program but also on the legitimacy of the claim that eating whale meat has become so integral to Japanese identity that its legal prohibition would constitute an unwarranted act of cultural discrimination and deprivation.

So, against this background, what is the real history of whaling in Japan? Is it first and foremost a story about the continuation of a centuries old cultural tradition?  And how likely is it that the whaling Japan continues to do in the name of scientific research under IWC rules will validate a long-standing dedication to the sustainable use of whales for food?

Digital Library VII: The Laws Relating to Salmon Fisheries in Great Britain (1866)

This week's addition to the digital library of historical environmental law is Thomas Baker's The Laws Relating to Salmon Fisheries in Great Britain, published in London by Horace Cox in 1866. Baker, the title page tells us, was a barrister of the Inner Temple and the Salmon Fisheries Office, and also the author of works on public health law. In the preface to the work Baker explained the need for a work on salmon law:

The Salmon Fisheries of this country have, by long neglect, become greatly injured. Poachers, thoughtless anglers, ignorant fishermen, and, above all, the abuses arising from the use of fixed engines, and the loose manner in which the close seasons were fixed, threatened the total destruction of the fish. To remedy this state of things, several statutes have at length been passed, applicable to Great Britain.

The first pages of the work proper have this Python-esque clarification:

To prevent any misapprehension, it is defined [by the Salmon Fishery Act of 1861] that the word " salmon" includes all migratory fish of the genus salmon, whether known by the names salmon, cock or kipper, kelt, laurel, girling, grilse, botcher, blue cock, blue pole, fork tail, mort, peal, herring peal, May peal, pugg peal, harvest cock, sea trout, white trout, sewin, buntling, guiniad, tubs, yellow fin, sprod, herling, whiting, bull trout, whitling, scurf, burn tail, fry, samlet, smolt, smelt, skirling or scarling, parr, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other local name; and that the expression "young of salmon" includes all young of the salmon species, whether known by the names of fry, samlet, smolt, smelt, skirling or skarling, par, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other name, local or otherwise...

On a more serious note, the work shows that the feasibility principle (or best available technology) was part of Victorian fisheries law:

To protect the fish from poisonous substances it is provided that every person who permits to flow, or permits to be put into any waters containing salmon, or tributaries thereof, any liquid or solid matter, as to cause the waters to poison or kill fish, will incur upon the first conviction a penalty not exceeding five pounds....  But no person will be subject to these penalties for any act done in the exercise of any right, if he prove that he has used the best practicable means, within a reasonable cost, to render harmless the matter so permitted to flow or to be put into waters.... It is obvious that, for preventing the destruction of fish, a mining company realising an immense income might reasonably be called upon to expend a much larger sum than an individual proprietor of a small paper-mill...

Digital library I: A New Treatise on the Laws for Preservation of the Game (1766)

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on A New Treatise on the Laws for Preservation of the Game, first published in 1764; the second edition, available online, was printed in London in 1766 by His Majesty's Law Printers.

The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham, a prolific author of law books in eighteenth century Britain.

The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation (Oklahoma!, anyone?): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So the author must have been something of a "sporting gentleman" (as he puts it on in the "Advertisement") himself, not simply a disinterested scholar.

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:

Fisheries litigation

Robin Kundis Craig and Catherine Danley recently posted "Federal Fisheries Management: A Quantitative Assessment of Federal Fisheries Litigation Since 1976". The abstract:

When Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act in 1976, it intended the Act to operate largely without the courts. Indeed, since the statute’s enactment, the National Oceanic and Atmospheric Administration (NOAA) and the regional Fisheries Management Councils have published over 1700 regulatory actions in the Federal Register, but cases challenging fisheries management have been relatively limited. 

Given how much fisheries management “flies under the courts’ radar,” so to speak, it is worth asking what kinds of cases do end up in the courts. This article presents an initial quantitative assessment of federal fisheries litigation since 1976 to begin to assess the role of the courts in federal fisheries management. It concludes first that the 1996 and 2006 amendments to the Magnuson-Stevens Act, each of which added enforceable ecological requirements, both increased the amount of environmentally-minded litigation brought under that statute. Nevertheless, contrary to many perceptions, fishermen always have been the Act’s primary litigants, arguably confounding Congress’s original intent for fisheries management.

Legal change and geography of the Great Lakes-St. Lawrence system

The Canadian Geographer recently published Jamie Benidickson's "From boundary waters to watersheds: Legal change and the geography of the Great Lakes-St. Lawrence system" (thanks to Canadian Legal History blog for noting it). The abstract:

It is appropriate to recognize an evolving legal and institutional perspective on the Great Lakes-St. Lawrence system (GL-SL) as a means of furthering the understanding that is provided from established cartographic, bio-geological, historic, and cultural perspectives. This paper describes elements of that evolution from a one-dimensional legal conceptualization of the GL-SL as a boundary reflecting sovereign autonomy and state security, through a more complex recognition of the water system involving navigation, fisheries, and water supply, to a more comprehensive acknowledgment of basin- and ecosystem-oriented approaches where land-use activities and influences ranging from groundwater flows through air-borne contamination must be accounted for. The Boundary Waters Treaty of 1909 and the Great Lakes Water Quality Agreement (1972–2012) provide general points of reference.

There's a lot in this article on pollution regulation, fisheries, and more.

Treaty rights, fish harvesting, and toxic risk

Symbolic Petition of Chippewa Chiefs, presented at Washington, January 28, 1849,
headed by Oshcabawis of Monomonecau, Wisconsin

In the latest development on the history of Indian treaties and the environment (see also, for example, here and here), the new issue of Water History has an article by Valoree Gagnon, "Ojibwe Gichigami (“Ojibwa’s Great Sea”): an intersecting history of treaty rights, tribal fish harvesting, and toxic risk in Keweenaw Bay, United States". The abstract:

Ojibwe Gichigami (“Ojibwa’s Great Sea”) is the spirit name for Lake Superior; it is also the homeland of the Keweenaw Bay Indian Community (KBIC) where Gichigami fishing has sustained the people for nearly a millennia. As signatories to the 1842 Treaty With The Chippewa, the KBIC retain rights for hunting, fishing, and gathering, and worship within ten-million acres of ceded land and water territory. However, due to elevated levels of toxics such as methyl-mercury and polychlorinated-biphenyls (PCBs), Lake Superior is currently under numerous fish consumption advisories that inform the public of harmful contamination levels. Thus, harvesting provides socio-cultural and spiritual wellbeing for the KBIC, and simultaneously, places their physical health at great risk. By using ethnographic methods and oral histories, this article illustrates how an intersecting history of KBIC treaty rights, tribal fish harvesting, and toxic risk is the center of their water story. Over the course of several decades, they have encountered dire consequences due to federal assimilation policies, state regulatory control over their harvesting, and environmental degradation and contamination. KBIC present-day perspectives of toxic risk are rooted in this history. In 1971, the Michigan Supreme Court presented a landmark decision: the People v. Jondreau reaffirmed 1842 treaty rights for the KBIC. This precedential decision was followed by Great Lakes states issuing the nation’s first fish advisories. The KBIC historical context is imperative to understanding present day environmental policy and its relevance (or irrelevance) for those most at-risk, emphasizing how social injustices are manifested through a people’s water history.

More on Indian treaties

"Salmon Fishing at Chenook", James G. Swan,
in The Northwest Coast; Or, Three Years' Residence in Washington Territory, 1857

Yesterday we posted on Indian treaties in the northeastern US (and Canada); today it's the Northwest. Michael Blumm recently posted "Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration". The abstract:

In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute. 

Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

The Storm King controversy

The recent Environmental History has a review by Ted Steinberg of Robert Lifset's Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (U Pittsburgh Press, 2014). Steinberg writes:

Con Ed seemed to be cruising toward its goal of building the plant when Scenic Hudson, an environmental group formed in 1963 to stop the project, began reckoning with the full ecological impact of the hydroelectric plant. Writer Robert Boyle had discovered that the Hudson River was alive with marine life. Boyle equated the prospect of licensing a plant in the Storm King area with the thought of slaughtering sheep in his own living room. The idea was slowly dawning on environmentalists that the hydroelectric plant would doom the river’s population of striped bass. Lifset argues that the introduction of ecological issues transformed the environmental movement in the Hudson Valley and helped lay the groundwork for its ultimate success.

This increased focus on ecology alone would never have led to the demise of Con Ed’s plans were it not for an equally important turn in the law that Lifset also explores in his book. In 1965 a federal appeals court ruled that Scenic Hudson was an aggrieved party and had the legal standing to launch a challenge to the Federal Power Commission with respect to Storm King. The decision reprimanded the power commission for failing to create an adequate evidentiary record, thereby foretokening the later implementation of environmental impact statements.

*****

Lifset offers a solid work of history that draws attention to the role of both ecological and energy issues in shaping environmentalism. His focus on legal change is also a welcome addition for those seeking a fuller understanding of the environmental movement. 

A call to research

Dave Owen recently posted the following at Environmental Law Prof Blog:

(from NMFS)

In environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990. In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law. Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.