Water rights and forest regulations in the Charter of the Escartons (1343)

The Grand Charter of the Escartons

I was fortunate to be able to spend some time this summer along the Guisane River, in the area formerly known as the Dauphiné, today in southeastern France. The river is notable for its old canals, still in use, and the surrounding mountain slopes are covered in forest. It turns out this landscape has an interesting legal history.

In 1343, Humbert II, the last Dauphin of Viennois (before that title passed to the kings of France and was used for the heir apparents to the royal throne), confirmed the rights of the people of the Briançon region in the "Grand Charter of the Escartons", effectively creating a sort of autonomous republic free of feudal obligations that survived, with its rights confirmed by the Kings of France, until the French Revolution. Two articles caught my eye (my translation from the French translation by Fernand Carlhian-Ribois):

Art. XVII  : The people of Briançon now have the right to build canals to water their land, take water from torrents and rivers without having to pay the right of use either to the Dauphin Humbert or to his heirs and successors.

Art. XVIII  : It is forbidden for the officers, Dauphins and Nobles to cut timber or firewood in the forests of the Communities of Briançonnais, Queyras, Vallouise, Césane, Oulx, Pinet, Chevalette, Fontenils, or other places in the Baillage, because the cuts are the cause of floods, landslides and avalanches. This prohibition is perpetual. 

Article 18, with its early recognition of the connection between deforestation, erosion, and flooding, is interesting for its popular environmentalism, blaming the environmental degradation of the mountain region (a theme that became prominent again in the nineteenth century; see. e.g., George Perkins Marsh's Man and Nature) on the feudal rights of the nobility, and abolishing those rights forever. 

And I wonder what the effect of Article 17 was on riparian conflicts. Said Guisane River is full of canals (see photo below) leading off to mills on the riverbanks and then returning the water downstream. While family members were enjoying rafting the stream, I was imagining the conflicts between riparian owners and public users that must have resulted from the many dams and diversions. Local legal records must be full of such riparian conflicts, and I would think that Article 17's right to take water free of charge must have complicated the issue.

Problems with formalizing rights in the commons

Political Geography recently published "Grabbing the commons: Forest rights, capital and legal struggle in the Carpathian Mountains", by Stefan Voicu and Monica Vasile. The abstract:

In this paper we show that formalizing communal rights is a process riddled with struggles leading to a partial or total grabbing of commons. Drawing on long-term research and using interviews, surveys, and historical sources, we analyze struggles that emerged from processes of formalizing rights to commons, occurring one century apart in the Carpathian Mountains of Romania. The first wave of formalization, initiated by the state in 1910, institutionalized a model of hybrid commons in which individual rights to communal forests and pastures were understood as inheritable and tradable shares. This generated never-ending contention and a vulnerability to capital, allowing timber companies to grab shares and dispossess rightsholders. The second formalization, post-1989, enabled local communities to regain rights to forests that had been nationalized by the state at the beginning of the socialist rule. However, this resurgence of mountain commons unleashed again a suite of legal struggles, bringing back to life previous vulnerabilities and dispossessions. We argue that the formalization of rights often does not bring clarity and security to commons rightsholders. Instead, it creates a suite of vulnerabilities, ambiguities, and complexity within regulatory texts, begetting the grabbing of the commons.

Barat Roland, Lambs in the autumn in the mountains

Success on the commons

Last year Environmental History published a review by Frederica Bowcutt of Mexico’s Community Forest Enterprises: Success on the Commons and the Seeds of a Good Anthropocene, by David Barton Bray (U. Arizona Press, 2020). Some excerpts:

According to Bray, Garrett Hardin justified enclosure and centralized land management based on an ahistorical understanding; shared-pool commons have always been regulated by rules to prevent overuse. They are not, as Hardin suggested, a free for all. Ownership of land with valuable forest resources incentivizes rural Mexican communities to adopt, develop, and adhere to rules designed to prevent a tragedy of the commons. Results thus far indicate that community-based management of local forest resources “can be as effective as public protected areas in conserving forest cover and biodiversity, while also generating income for local communities” (p. 246).

Digital library VIII: Manwood's Treatise of Forest Laws

It's been a while since I updated the "Digital library of historical environmental law", so here's a new addition, connecting environmental law with Magna Carta: John Manwood's Treatise of the Forest Laws (4th edition (1717) here). 

GWU Law's Legal Miscellanea explains that Manwood was a barrister, gamekeeper, and Justice in Eyre of the New Forest under Elizabeth I. His Brefe Collection of the Lawes of the Forest was printed in 1592 for private circulation and the first edition of the Treatise, printed in 1598, was entitled A Treatise and Discovrse of the Lawes of the Forrest. The 4th edition (above) was "corrected and enlarged by William Nelson," a practitioner in the Court of Chancery.

Chris Besant, in his 1991 "From forest to field: A brief history of environmental law" (16 Legal Service Bull. 160 (1991)), explains further:

Forest law operated principally to protect two resources: vert and venison. Vert was the timber of the forest, plus any grasses, ground cover or vegetation necessary to support the venison, including cover or vegetation which provided shade. Venison denoted the wild beasts of the forest (hart and hind, hare, boar and wold), chase (buck, does, fox, matron and the roo), and warren (the hare, pheasant, partridge and the cunnie). All of these beasts were privileged and protected from capture within the forest by the forest law, although outside thereof, they could be taken through capture by anyone.

*****

Magna Carta is a general reaction against the centralisation of government in derogation of the feudal principle. The King in his weakness is forced to concede that he will not 'overreach' his proper bounds as defined by the common and forest laws of the land. Thus the Charter of the Forest is a further delimitation of forest custom in the interests of liberty, and is the beginning of the great destruction of England's natural environment.

The right to rake

Peter Szabó recently published "The Horka Litter Raking Incident: On Foresters and Peasants in Nineteenth-Century Moravia" in Environment and History. The abstract:

Litter raking was a traditional forest use representing an interface between forestry and agriculture. In forest history, it has usually been presented as the harmful removal by peasants of biomass, which was gradually eliminated by foresters, leading to better forest preservation. Based on the example of an exceptionally well-documented case of illegal litter raking in Moravia in 1845, in this paper I argue that juxtaposing foresters and peasants in connection with litter raking masks a much more complicated reality. Neither foresters nor peasants can be interpreted as homogeneous groups because there were significant differences in the opinions and agendas of various representatives within these groups. In addition, opinions were not static on either side but could change in a discursive pattern. In a wider context, the environmental historical analysis of the Horka litter raking incident facilitates the understanding of larger societal processes that influenced past woodland management in Central Europe, and therefore current ecosystems too.

Ecological consequences of Spanish colonialism

Last year's The Americas published an article by Christopher Woolley, "'The Forests Cannot be Commons': Spanish Law, Environmental Change, and New Spain's Council on Forests". The abstract:

This article examines the sylvan political ecology of late colonial New Spain and the colonial government's attempt to address deforestation through the Council on Forests, the first body in the kingdom's history dedicated to the conservation of natural resources. Drawing primarily from the corpus of documents produced by and remitted to the council, this article gives a trans-regional perspective on colonial forest use and argues that the Spanish crown's usurpation of indigenous communities' eminent domain over forests was the first step in a process that over centuries progressively severed the cultural ties that bound communities and forests by converting common-pool resources into open-access commons. The catastrophic mortality of the Spanish invasion was the second step, which rendered conservation measures seemingly unnecessary among both woodcutters and officials. But it was during the eighteenth century that older Habsburg notions of protectionism intersected with economic and political changes associated with Bourbon rule to further compel this cultural severance. While previous works have studied the ecological impacts of mining, ranching, and flood control, this article moves beyond the study of a single industry to suggest some of the larger ecological consequences of Spanish colonialism.

Forest in the Sierra Juarez, Oaxaca, Mexico (credit: Prsjl)

Italian forest commons

As summer bakes Jerusalem and flights are indefinitely suspended, thoughts of Italy's Cadore region, discussed in Giacomo Bonan's The State in the Forest: Contested Commons in the Nineteenth Century Venetian Alps (White Horse Press, 2019), are beguiling. (Bonan wrote an excellent paper, "Confronting Hardin: Trends and Approaches to the Commons in Historiography", for a collection I edited a couple of years ago.) ARO recently published a review by Richard Hölzl of the book; some excerpts:

At the center of Bonan’s book are the Alpine valleys of the Cadore, a region in the Eastern Italian Alps to the North of Venice and bordering on Alto Adige/South Tirol and Austria. The region came under the rule of the Serenissima of Venice in the early fifteenth century and remained so until its fall in 1797. After the brief but very important period of the Napoleonic Kingdom of Italy, it was part of the Habsburg Empire from 1815 to 1866, when the Veneto was annexed to the new Kingdom of Italy. Since the thirteenth century the families of the Cadore, constituted as the Community of the Cadore, organized the local forests and their exploitation as commons under a system known as regole. Regole initially meant regular decision-making at assemblies by the heads of the households of several Cadore villages, who also appointed officers to enforce regulations of communal life. With the increasing success of Venice as a maritime and commercial power, the forests of the Cadore became of importance to the Venetian economy, as they provided timber for shipbuilding and city extension. Timber entrepreneurs of the Cadore cooperated with Venetian merchants and established a vibrant business that also dominated the income and livelihoods of the local households of the Cadore. Timber trade provided decently paid labor for members of every household and subsidized food imports to the mountain valleys, which did not support much agriculture. It also resulted in considerable population growth before and after 1800. Moreover, it furthered the stratification of local society in wealthy timber entrepreneurs, established families who claimed access to and common ownership of forests, and a class of newcomers and landless without such benefits.

The Napoleonic Age brought fundamental changes to this system – changes, which lasted the better part of the nineteenth century and had the established families of the Cadore look back nostalgically on the seemingly good old times, when the regole system was intact and the timber trade supported communities and households well. The advent of modern forestry in the Napoleonic and Austrian period meant that regional and central administrative officers were tasked with supervising the felling process as well as introducing new cutting and conservation measures. The administrative elite in Venice adopted the new scholarship on forests which emerged out of France and Germany and attempted to implement it on Venetian territory.

The Cadore, however, is an interesting exception to the general trend to abolish and privatize the forest commons in the early nineteenth century. Rather than abolishing the commons, the successive administrations tried to modernize their administration by transferring the management from the regole and villages to larger municipalities and regional forest authorities, and by using the profits from the forest commons for road building and schools, rather than supplementing food import. 

Coal as a green fuel

Earlier this year Environmental History published Germán Vergara's "How Coal Kept My Valley Green: Forest Conservation, State Intervention, and the Transition to Fossil Fuels in Mexico". Some excerpts:

This article explores how state policies and legislation of successive Mexican governments in the late nineteenth and early twentieth centuries sought to curb rapid deforestation by fostering the energy transition to fossil fuels (coal and oil) in industrializing regions of the country such as the Valley of Mexico and Monterrey.

*****

Anthracite coal breaker and power house buildings,
Madrid, Mexico, circa 1935

In the 1850s, both conservative and liberal governments in Mexico took an interest in forest conservation. In 1854, during General López de Santa Anna’s conservative administration, the recently created Ministry of Development (Ministerio de Fomento) asked mining districts nationwide for information about the extension and characteristics of the forests being logged for mining. The government agency also inquired about local regulations governing forest exploitation and reforestation efforts. In 1857 the new liberal government, despite ongoing military challenges from conservatives, sent a memorandum encouraging state governments to enact legislation protecting forests. In typical fashion for Mexican liberals, the government not only delegated the responsibility to local authorities but also made clear that conservation measures should not interfere with the timber needs of industries and mines.

Calls for forest conservation became more common in the 1860s. Key institutional actors in Mexican science, such as the Mexican Society of Geography and Statistics (Sociedad Mexicana de Geografía y Estadística), began publishing significant work on forest conservation. In one editorial, the editors of the Boletín (the society’s publication) expressed alarm over rapid forest loss. Like Río de la Loza, they blamed factory owners and the indigenous population, who “cut and destroy their only patrimony,” although they also criticized owners of large estates (hacendados). The journal also published the work by conservationists such as Romero Gil, who drew from Alexander von Humboldt and Mexican mining engineers to argue that forests prevented drought and fostered human health. In one article, Gil offered an overview of earlier forest legislation and called for reviving provisions from colonial forest laws, particularly those relating to coppicing (horca y pendón). In an effort to inspire analysis and discussion of earlier legislation, the Boletín reprinted an 1845 Mexican forest code, one of the first issued in independent Mexico.

*****

As coal production increased, it became clear to state officials that Mexico needed a modern legal framework to facilitate and regulate coal extraction. A heated debate broke out between those who argued that coal deposits ultimately belonged to the nation (following the tradition of the colonial mining ordinance, Ordenanzas de Minería) and those who defended the preeminence of private property rights. To a degree, the controversy was rooted in confusion over the natural composition of coal and other fossil fuels. For some experts, and seemingly many laypeople, the organic origins of coal and oil made them nonmineral. Critics of this position posited that although both were organic in origin, they had been formed by geologic nonorganic processes, thus qualifying them as minerals. Most experts agreed and considered both coal and oil as “fossil fuels” (combustibles fósiles). As such, coal and oil should fall under the old colonial tradition of state ownership that only governed minerals.

The matter was settled in 1884 when the federal government enacted a new mining code. The code’s authors were mostly interested in creating suitable conditions for Mexico’s industrialization and were perfectly aware that a key component of the project was the large-scale adoption of fossil fuels for industrial power. The new code recognized coal and oil as minerals (as under colonial law) but gave private owners full property rights to surface and subsoil mineral wealth. Thus the Mexican state relinquished its claim to being the ultimate proprietor of subsoil commodities, including coal and oil, and declared that private landowners could exploit those deposits without prior government authorization. The code also sought to stimulate coal and iron mining by exempting both from taxes for fifty years. It is important to note that scholars have often interpreted the mining code of 1884 as an attempt to attract foreign investment, overlooking its long-term effects on Mexico’s energy transition to fossil fuels. The code not only regulated the fossil fuel market; it created it. Beyond spontaneous market processes, it was lawmaking—that ultimate tool of politics and policymaking—that proved instrumental in Mexico’s transition to fossil fuels. The code remained the main legal framework for the coal and oil industry until the enactment of the Constitution of 1917.

The California ascendancy: Explaining world leadership in environmental law and policy

[A guest book review from Geoffrey Wandesforde-Smith:]

In the newest addition to the Studies in American Politics series from Princeton University Press, David Vogel in California Greenin’: How the Golden State Became an Environmental Leader (Princeton UP, 2018) asks how it is that California has had such success in protecting its environment and has become a world leader in making and implementing environmental policy and law.

Vogel sketches boldly on a large canvas:

This book describes what is in many respects a remarkable success story. It demonstrates how a state government has been able to overcome substantial obstacles and enact a wide range of regulations that have made measurable - though admittedly uneven – progress in protecting its environment and improving the quality of life of its residents. Although California has often seemed on the verge of ecological (as well as economic) catastrophe, it has proven remarkably resilient. The state’s ability to remain the most important source of environmental policy innovation in the United States over so many decades and across such a diverse range of policy areas is a significant accomplishment.  It is worth understanding why and how this particular state came to play such an important leadership role in this area, as well as the broader policy implications of such leadership [p. 6]. 

One of those implications, Vogel writes, is that the story of California’s ascendancy holds lessons for the world:

What happens in California…has a global impact.  During the 1980s, the relative stringency of California’s vehicle emissions standards was an important reason why Germany chose to support the adoption of similar standards by the European Economic Community… More recently, according to…a Nobel Prize-winning scientist from Mexico, “the rest of the global economy is looking to California, as one of the world’s largest economies, to take the lead” in addressing the risks of global climate change.  The state has come to play an increasingly active international role [p. 8, citations omitted].

When it comes to explaining how and why California has become such a successful and resilient law and policy leader Vogel focuses on three factors he considers to be interconnected in varying ways at different times in the state’s history, depending on the issues being addressed.  

One is the political mobilization of California’s citizens, most especially in the late 1960s and 1970s.  A second is the support for environmental policy initiatives provided at critical moments by least some important segments of an often divided business community.  And a third is the growth over time of the state’s capacity to design and implement programs of resource management and environmental regulation, in some cases in state agencies recognized as world leaders in the work they do [1].

This is obviously a provocative thesis and it may well keep students of the history of California environmental law and policy busy for some time to come.  But it also and immediately raises the question of why, if the story of California’s ascendancy, which on Vogel’s telling has its roots in the late nineteenth century, is so remarkable and potentially so influential, the story hasn’t been told before now.  

The answer is that the story has been told, at least in part, twice before, although Vogel chooses not to engage seriously with either prior account [2]. 

Royal forests in Poland and Lithuania

Title page of Jan Kochanowski’s Satyr albo dziki mąż (1564),
a political satire in verse that criticized forest exploitation.
(National Digital Library Polona, from the article)

Forest law continues to provide grist for scholarship.

October's Environmental History published, alongside an article on early Chinese forest law, Mateusz Falkowski's "Fear and Abundance: Reshaping of Royal Forests in Sixteenth-Century Poland and Lithuania". The abstract:

This article analyzes new restrictive forest legislation announced by king Sigismund Augustus (d. 1572) in Poland and Lithuania. In the sixteenth century, eastern Europe remained the most densely forested region on the continent; Poland and Lithuania, however, were blessed not only with resources but also with an unusual combination of plains, forests, rivers, and seaports that facilitated the development of large-scale forest industries. Drawing on a combination of royal documents, domain surveys, correspondence, customs registers, and contemporary literature, I argue that the significant resources available to the king allowed him to think of the forest economy and long-distance trade in its products as the backbone of state finances. I recognize changes in the forest regime as part of the greater state reforms redefining the relationship of the king’s subjects to his domain, as well as a strategic move designed to increase treasury income to finance the military during the Livonian War (1558–83). I also argue that changes in the forest regime were established because of the abundance of resources, unlike in many contemporary European states that introduced prohibitive laws as a result of wood shortage fears.

For other recent takes on forest law see here, here and here, or click on the "forest" label.

Historical analysis in environmental law IV: What is to be done? - The commons, forest law, and police

At the end of the previous post in this series I argued that the history of environmental law remains in need of extensive work both in uncovering the legal roots of contemporary environmental law and in making the lateral connections between historical environmental law and other historical topics.

I would like to suggest that of these two dimensions—we might think of them as longitudinal and lateral—the first order of business should be longitudinal, deepening the temporal dimension of environmental law. We will be hard pressed to assess the significance of historical environmental law or its interactions with other areas of law and life without knowing what it was or what people thought about it. However, given that 'environmental law' is a recently coined term, where are we to look for historical environmental law? I will offer several directions of inquiry, some of them already explored by environmental and other historians, though often without the sensitivity to legal dimensions that might be expected were more legal historians to take up the task. (Not all work on historic environmental regulation is necessarily relevant to understanding the sources of current environmental law. For instance, scholars have investigated environmental regulation in Roman law and in Jewish law, but it would be difficult to claim that these ancient legal systems were the source of modern environmental law.)

One obvious place to look is to the history of that most well-worn of metaphors for environmental problems—the commons. As is well known by now, the actual medieval and early modern European commons caricatured in Garrett Hardin's parable of the tragedy of the commons were not the rule-free disaster zones he depicted, but rather highly regulated sites of interaction between humans and nature. Environmental historians have studied the laws governing the woodland and pasture commons, though not necessarily in the framework of 'environmental law' or with an eye to the type of questions a lawyer might ask of the sources. In particular, historians of environmental law might want to investigate broad issues such as the conceptions of law, justice, right, and property reflected in the commons regulations, as well as narrower ones such as the types of rules, standards, adjudicatory procedures, and remedies applied to various forms of environmental conflicts and their possible influence on later legal rules.

For instance, the principle of 'necessary use'—'that the actions of others should not deprive one of the basic materials needed to sustain one’s enterprise'—was apparently ubiquitous in early modern German commons by-laws, as it was in the rules governing water allocation in the nineteenth century western United States. It is also arguably the motivating principle behind the feasibility standard so pervasive in modern environmental regulation, which requires a polluter to use the best available technology only to the extent it is economically feasible. While a theorist might use this commonality to support a normative or positive argument about property in natural resources or pollution regulation, a historian might profitably search for the common roots of these norms or the paths through which they travelled in time and space, and the ways people justified or criticized them over time.

Moreover, legal fights against enclosure of the commons were clearly a precursor of more recent legal protections for open spaces, an alternative source to the commonly accepted stories about the Romantic and preservationist roots of this area of law, and one with a more socially-oriented tint. Investigation of the commons preservation movement and anti-enclosure movements in general are likely to yield insights into the political valence of some of the historical building blocks of environmental preservation law.

A related field demanding study is forest law. It is practically a commonplace among environmental historians that the concept of sustainability, so central to contemporary environmental law, originated in early modern forest management, and historians have shown that intensive forest regulation in Europe goes back to the medieval period. Environmental historian Richard Grove has made the connection between colonial forest management and concerns over climate change, and my own work has connected this concern to colonial forest regulation. E.P. Thompson's Whigs and Hunters highlighted the way early modern English forest law was both a tool of enclosure on behalf of landed elites and a site of resistance for commoners, and similar points have been made about English law in the medieval period. Other works have examined the historic interplay of private, common, and state property in forests and varying conceptions of conservation that were expressed in their regulation. These are all themes that continue to resonate in modern environmental debates. Further research might shed light on how forest law variously worked to preserve forests or facilitate their destruction, as well as on how this regulatory field influenced other areas of environmental law, including modern debates over the commons and enclosure.

Both these bodies of law are connected to a third, broad one (though some would deny it the distinction of being considered 'law'): so-called 'police' regulation. This flexible and capacious form of regulation, justified in terms of its promotion of good government and the common welfare, has had many points of contact with environmental issues since early modern times, through its protections for public health and safety and rules for management of natural resources.

In the next post, I'll give my take on Markus Dubber's attack on police regulation, and discuss further places to look for the history of environmental law.

The redwood wars

The latest American Historical Review has a review by Neil Maher of Darren Speece's Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts:

Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign over redwoods. The legal stalemate that resulted, Speece concludes, fostered “the Deal” orchestrated by President Bill Clinton, which not only protected the old-growth redwoods of the North Coast’s Headwaters Forest but also laid the groundwork for additional protection of endangered landscapes nationwide.

Defending Giants is about more than environmentalists, however, and in order to give voice to the lumber executives, loggers, and lawyers who also serve as foot soldiers in this conflict, Speece embraces a diverse set of historical methodologies. To understand the grassroots beneath his tall trees, he scours local newspapers, digs into unprocessed archival material from North Coast environmental groups, and, perhaps most importantly, conducts dozens of oral interviews with activists, timber workers, lumber company managers, and forest policy bureaucrats. Speece also skillfully navigates a torrent of legal cases initiated by environmentalists to halt redwood logging, and tracks a wide range of timber policy proposals through the hallways of capitols in both Sacramento and Washington, D.C. Finally, he carefully balances his narrative by analyzing the annual reports of the Pacific Lumber Company, which owned these redwood forests, of its successor, the Maxxam Corporation, and of several other timber businesses from the Pacific Northwest. The result, which successfully blends social, political, legal, and business history, will interest more than environmental historians. 

Forest regulation and its critics in early China

The latest Environmental History has an article by Ian Matthew Miller, "Forestry and the Politics of Sustainability in Early China", with some fascinating discussion of arguments for and against regulation in Chinese philosophy. The abstract:

Between the sixth and second centuries BCE, Chinese states developed offices to oversee the sustainable use of forest resources. This era, often cited as a period of rampant environmental degradation, also saw the emergence of a discourse of sustainability. The early philosopher texts criticized the environmental and moral degradation of their era in order to promote specific policy interventions. In response to the deforestation they depicted, moralist and pragmatist philosophers alike argued for regulations on land use as the basis of a sustainable political order. Early states used these ideas to justify state forestry, culminating in extensive forest bureaucracies under the Qin and Han empires in the second and third centuries. These forestry institutions were among the earliest in the world, preceding state forestry programs in Europe and Japan by nearly two millennia. Yet even at the early apex of state forestry, many thinkers criticized government regulation as immoral or ineffective and promoted the self-sufficient community as an alternative basis of conservation. These early texts were established as the core of the Chinese philosophical tradition, and their arguments for and against state regulation became the basis of many later debates over sustainability and institutional forestry.

9th century version of the character yu (hunter or forester)
(Chuan Cao, 2016, from the article)

Labor unions and forest protection

The connections between working-class environmentalism and environmental law is an understudied theme that I've had occasion to highlight before (e.g. here and here and in my forthcoming article on historical analysis in environmental law). Last year I noted that Erik Loomis won an award for his article, "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948". Now Robert Walls has a review of Loomis's book, Empire of Timber: Labor Unions and the Pacific Northwest Forests (Cambridge UP, 2015), for Environmental History. From the review:

Focusing on everyday labor and the designs of union activists, Loomis provides a complex portrait of how the industry’s base attempted to advance its goals of securing both sustainable forest resources and health and safety protections for men and women in an often dangerous workplace. The result is an informed analysis of labor’s successes and failures, one that broadly encompasses the radicalism of the Industrial Workers of the World (IWW), the challenge of the International Woodworkers of America (IWA) to midcentury forestry policy, and organizing efforts by countercultural reforestation cooperatives in the 1970s to oppose herbicide exposure.

Drawing productively on Thomas Andrews’s notion of “workscapes” and Rob Nixon’s concern with “slow violence,” the author demonstrates how the IWW, and the industry-sponsored Loyal Legion of Loggers and Lumbermen, initiated reforms to an increasingly industrialized work environment that punished bodies through the speed of production or the creeping pathology of disease from poor camp sanitation. A more holistic approach to the “total work environment” (p. 133) was later adopted by the IWA to moderate the debilitating impacts of postwar production technology; the union marshaled evidence from scientific sources and eventually called upon Occupational Safety and Health Administration regulations to combat the effects of new ailments, such as the auditory and neurological consequences of prolonged chainsaw use and the toxic impact of chemicals, such as pentachlorophenol, used in mills.

Loomis’s description of union critiques of industrial forestry’s destructive practices—decades before the modern environmental movement—is equally illuminating.

Forest law and constitutional change

Rata forest on on Enderby Island

Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History. The abstract:

New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

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.

More forest law

Following yesterday's post on medieval forest law, today's is on the other article from that William & Mary Bill of Rights Journal special issue, Sarah Harlan-Haughey's "Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England". A taste (footnotes omitted):

The popular genre of literary forest law parody was established quickly after the Conquest, and functioned as a ready-made engine for the evolution of parody of the kind that would lead to the late medieval outlaw rhymes, masterworks of absurdist nonsense. Poachers, as well as poets, continued to perceive forest law on the ground as unjust and parodied it in word and action.

William the Conqueror, the Bayeux Tapestry

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. 

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)