Property in Gaza's sands

Dotan Halevy recently published "Sand and the City: On Colonial Development and its Evasive Enemies in Twentieth-Century Palestine" in Environment and History. The abstract:

This article traces the colonial origins of a crucial aspect of the environmentalist discourse since the mid-twentieth century - the idea that planetary substances should be stripped of ownership rights and become in and of themselves the subject of rights. The article looks closely at the Gaza region under British mandatory rule to explain how the rehabilitation of Gaza city, devastated during WWI, has failed. Gaza's reconstruction efforts, the article argues, collided with the British initiative to arrest the drift of dunes along the coast of southern Palestine. Throughout this project, the British administration extinguished Arab property and usufruct rights to expand state domains. They backed this policy with an elaborate ecological perception that saw sand and its inhabitants as agents of environmental ruin. The quarrel that has developed thus made the Gaza region an imperial test ground for probing what sand is? Does it have a history? And, therefore, can it be claimed as an object of rights? Divorcing nature from culture, the British administration in Palestine rejected the validity of sandy lands' economic past and constructed them as inhospitable 'wastelands' - a purely natural element. As such, sands could be subjected to governmental 'development' through afforestation and urbanisation while time-honoured agricultural practices and land rights of the local coastal population were neglected.

Map of Gaza dunes, Survey of Palestine (1931)

The right to nature in 1880s Ireland

Just out in The Historical Journal is "The Right to Life, the Right to Nature, and the Impact of Irish Land on Political Thought in the 1880s" by Andrew Phemister. The abstract:

The Irish Land War was a pivotal conflict in the history of liberal political thought. With significant impacts on both sides of the Atlantic, events in Ireland were about more than Irish self-determination. Heavily reliant on a discourse of natural right, and asserting a relationship between land ownership and democratic-republican citizenship, the Land War provided a vehicle for popular radical opposition to an increasingly positivist liberalism. This article examines the rationales and political assumptions underlying the demand for land, and how such arguments catalysed an intellectual response among liberal political thinkers. Particular moral and metaphysical ideas about the distinctiveness of land allowed agrarian and labour radicals to reassert individualized but non-possessive rights to natural resources. Rooted in a materialist politics of the human body, this purposive conception of land posed a significant threat to claims for private property, social order, and the ameliorative authority of the state, pressing both liberal and conservative thinkers away from unstable notions of individual rights. The crisis over Irish land helped to shift the terrain of political argument away from questions of participation and popular power, and toward amelioration and public welfare.

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

Yellowstone at 150

Anna Price of the Library of Congress's In Custodia Legis recently posted on the 150th anniversary of the creation of Yellowstone National Park, the US's first. Price goes through the legislative history of the statute creating the park, as well as some of the legal issues that arose, including American Indian treaty rights and potential conflicts with settlers claiming preemption and homesteading rights. The latter issue, as the blog points out, also arose in the context of Yosemite Park in the 1872 US Supreme Court Case of Hutchings v Low (a.k.a. The Yosemite Valley Case).

poster designed by Don C. Powell (LOC)

LBJ's environmental legislation

A recent issue of Federal History has an article by Nancy Germano, "Negotiating for the Environment: LBJ's Contributions to the Environmental Movement". From the article:

Environmental historian Martin V. Melosi refers to the Johnson administration as "a transitional force in the evolution from old-style conservation to modern environmentalism." This article presents evidence in support of Melosi's statement by showing that the Johnson presidency, typically associated with civil rights, the War on Poverty, and the Vietnam conflict, also created an environmental legacy. In addition to a record number of federal laws directed at protection of natural resources, Johnson's rhetoric and actions set the stage for American environmentalism. He, along with Lady Bird Johnson, initiated new conversations and approaches for natural resource protection and shaped environmental advocacy for the nation. In the process, Johnson generated an enduring conviction that environmentalism and individualism-the individual's claimed freedoms and property rights-could thrive hand-in-hand.

This article explores two legislative campaigns during the Johnson administration-urban beautification and protection of wild and scenic rivers-that exemplified the president's stance on natural resource conservation. These campaigns demonstrated the priorities of environmental "restoration," cleanup, and stewardship later adopted by the environmental movement. By generating public participation in environmental programs and fiercely negotiating the possible outcomes, Johnson's approach and recommended strategies prefigured the work of environmental activists.

Germano notes:

In addition to those discussed in this article, laws relating to the environment signed by Johnson include the Clean Air Act (PL 88-206), Pesticide Control Act (PL 88-305), Wilderness Act (PL 88-577), Land and Water Conservation Fund Act (PL 88-578), Fire Island National Seashore (PL 88-587), Canyonlands National Park Act (PL 88-590), Water Resources Planning Act (PL 89-80), Water Quality Act (PL 89-234), Solid Waste Disposal Act (PL 89-272), Water Pollution Control Act (PL 89-753), Guadalupe Mountains National Park Act (PL 89-667), Endangered Species Act (PL 89-669), Indiana Dunes National Lakeshore Act (PL 89-761), San Gabriel Wilderness Act (PL 90-318), and Great Swamp Wilderness Area Act (PL 90-532).

Law in the Anthropocene? Maybe not

Eric Biber recently posted a series at Legal Planet based on his recent Georgetown Law Journal article, "Law in the Anthropocene Epoch" (abstract below). The Anthropocene, for those who have somehow missed this buzzword, is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument.

First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater government involvement", etc.) seems to me problematic, reflecting an environmental-determinist and functionalist view of legal development that I find unconvincing. Many of the challenges identified by Biber have been with us for some time, and the law has apparently not adapted to them. It is not clear that it must or will do so in the future. I think a more tentative or even a normative tone would have made for a more convincing argument.

Second, Biber's use of "the Anthropocene" is idiosyncratic. Many proponents of the idea of an Anthropocene epoch seem to have settled on a start date in the mid-twentieth century, though others (including the originators of the idea) argue for an 1800 start, and others would push it back even further. In any case, if there is an Anthropocene, we are already in it, the challenges identified by Biber are already upon us (with many of them hundreds of years old), and so if, as he argues, the law will change in response to them, it should have already done so. If the Industrial Revolution took place during the Anthropocene, it is hard to make sense of his argument that "These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries."

Water law in Star Chamber

‘A plotte of the landes about Ashebourne’, Derbyshire. 1556–1557
(Folger Shakespeare Library)

One difficulty of English water-law history is the dearth of reported water cases predating the nineteenth century. Fortunately young historians are doing good work in digging up archival documentation of water litigation. We heard a few years ago from Leona Skelton about her interesting work on the Tyne River Court, and now I'd like to note Lehua Yim's work on a sixteenth century water law dispute litigated in the Court of Star Chamber: "A Watercourse ‘in Variance’: Re-situating a Sixteenth-Century Legal Map from Ashbourne, Derbyshire", published last year in Imago Mundi. The abstract:

Law-related English local maps, especially those dating from the early- to mid-sixteenth century, remain in need of both extensive and close study. In this article, a hand-drawn sketch map in the Folger Shakespeare Library, Washington, DC, is re-contextualized in relation to documents connected with lawsuits in The National Archives in England. These lawsuit documents, concerning disputes brought before the court of the Star Chamber in the mid-sixteenth century, allow us to correct the accepted date of the map’s creation, suggest its likely creator and identify its probable use at a time of expanding cartographic consciousness among the educated classes. The importance of the manuscript map to one English family’s subsequent assertions of proprietary rights in a small stream running from Bradbourne to Ashbourne, Derbyshire, explains its provenance outside official court records.

Star Chamber has gotten a bad name in the last few hundred years, especially in the US, but it was an important court in the early modern period, capable--as Yim's article shows--of providing justice where the common law courts could not.

Looking back on Lucas

Dan Farber recently posted at Legal Planet on the 35th anniversary of Lucas v. South Carolina Coastal Commission, "the high-water mark of the Supreme Court’s expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation." (For an earlier post on the case, see here.) Farber writes:

Lucas epitomized the late Justice Scalia’s crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Thirty-five years later, it is striking how little impact the case has had.

Understanding the reasons requires something of a deep dive into the case and its complicated legal setting. Lucas had purchased two lots on an island in 1986. Two years later, the state had passed a beachfront management act, which prohibited new construction on the island because it was in a high erosion zone. Relying primarily on dicta in preceding cases, the Court held that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Thus, while an owner deprived of 95% of the property’s use might sometimes recover nothing, the owner deprived of 100% would recover completely, due to the bright-line nature of the rule. 

David Lucas on the lot at stake

*****

In retrospect, the Lucas rule had some fundamental flaws that limited its potential to restrain regulators. First, it is extremely rare to find that a regulation leaves land with literally no value. It probably wasn’t even true in the Lucas case itself. Second, the legal foundations of the opinion were flimsy. Scalia cited only dicta in earlier cases, that is, language in those cases that wasn’t really necessary and for that reason wasn’t binding. And... Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government.

Lucas’s limited influence compared to early fears has something to do with Justice Scalia’s approach to opinion writing.

Beach access and American conservatism

Bixby Creek Bridge near Big Sur, California
(Bill Lane Center for the American West)

The issue of public beach access has played a major role in the history of environmental law (see, e.g., here, here, and here). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism". The article opens:

In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order to protect the state’s coastline from environmental damage and overcrowding. The commission ruled that Consiglio’s house would block the view of the ocean from a nearby highway, disrupt a path to a rocky cliff above the sea, and reduce public access to the beach below the development site. Using powers that had been delegated to it by the state legislature, the commission denied Consiglio’s application for a building permit. Consiglio could continue to own this scenic property overlooking the Pacific Ocean, but she would not be permitted to build a home there.

Consiglio eventually sought help from the Pacific Legal Foundation, a nonprofit, “public-interest” legal foundation established in 1973 by Ronald Zumbrun, a former aide to California governor Ronald Reagan, with help from several prominent California lawyers and businessmen. Zumbrun’s organization photographed the gray-haired woman, standing on a rocky cliff overlooking the Pacific surf, and put the image on the front page of its bimonthly newsletter. The accompanying article, titled “What Happened to the American Dream?” began: “Viktoria Consiglio, unhappy, confused, and angry, wonders what happened to her dream of owning a home by the sea. A dream that has turned into a nightmare of government red tape and legal costs that have taken a big chunk of her income from her job as a clerk-bookkeeper.” Lawyers at the foundation prepared to file suit, on the grounds that the Coastal Commission’s decision was inequitable, unjustified by law, and interfered with the woman’s property rights. The state of California may have certain powers to zone or plan for new development, the foundation argued, but it could not render this woman’s property nearly useless to her. 

Scalia's "takings" legacy

John Echeverria recently posted "Antonin Scalia's Flawed Takings Legacy". The abstract:

This essay offers a generally negative appraisal of the significance of Justice Antonin Scalia’s work on the takings issue during his tenure on the Supreme Court. While Justice Scalia was a visible advocate for expanding the scope of regulatory takings doctrine, and his opinion for the Court in Lucas v. South Carolina Coastal Council represents an important precedent, the totality of Scalia’s takings work turned out to be relatively inconsequential. He only authored two majority opinions in takings cases during 30-plus years on the Court. No grand theory motivated his work on the issue, though he was surely sympathetic to the potential for the Takings Clause to constrain the permissible scope of government regulation. Scalia’s substantive contributions to takings jurisprudence are best understood as an effort to elaborate upon the two-part takings test articulated by Justice Lewis Powell in his 1980 opinion for the Court in Agins v. City of Tiburon. The first branch of this test, suggesting that a regulation denying economically viable use of property necessarily represents a taking, blossomed into the Lucas decision; though undeniably important, Lucas has turned out to have a relatively narrow scope. The second branch of the Agins test, suggesting that a regulation results in a taking if it fails to substantially advance a legitimate governmental interest, was repudiated by a unanimous Supreme Court, including Scalia himself, in the 2005 decision in Lingle v. Chevron USA Inc.

For more on Scalia and takings, see here.

Economics and property rights in the Gold Rush

I just came across a review that I wrote and submitted a while ago for the Business History Review on Mark Kanazawa's Golden Rules: The Origins of California Water Law in the Gold Rush (U. Chicago Press, 2015). I had thought the editors would inform me when it was published... Anyway, here's what I wrote:

There's still gold in them thar hills. A century and a half after the torrent of gold-seekers to the California Sierras dried up, the flow of historical studies of the development of property rights on the gold frontier continues unabated. This work of detailed scholarship by Mark Kanazawa, an economic historian who has published extensively on water law in the western United States, is the latest entry into the auriferous regions.

Romance and adventure aside, economic and legal historians, along with property theorists, have been drawn to the California gold rush for two main reasons. First, the development of “codes” in the mining camps of the forty-niners provides a colorful case study of the institution of a system of law from scratch. Because government presence and state law were thin on the ground in gold-rush California, the ability of the miners to institute working systems of norms seems to serve as a historical example of successful private ordering. Beyond this, scholars of water law have taken a particular interest in the laws of the diggings, as the system of private rights in water that applies to this day in much of the western United States, known as the appropriation doctrine, is thought to have originated in the gold fields. So miners’ laws have received quite a lot of attention in studies hoping to explain how legal order spontaneously emerged out of chaos and why the miners abrogated the common-law regime of “riparian rights” in water (in which all landholders adjacent to the water source shared it) in favor of appropriation, based on the principle of “first in time, first in right.”

Golden Rules takes an economic approach to understanding the origin and evolution of water law in the California mining region in the decade or so following the discovery of gold at Sutter's Mill. After several substantial introductory chapters laying out the history of California gold mining and the ditch industry that developed to provide the water used in increasingly large and sophisticated mining operations—as well as the economic theories of property and tort he believes explain the historical development of the law—Kanazawa gets down to his analysis in detail. Chapter 5 examines the water rules adopted in the mining camps, arguing that they generally did a good job of promoting mining at an efficient scale. Chapter 6 discusses how economic forces gradually pushed disputes over water from the informal mining camp system to the official courts of the state. Chapter 7 argues that the appropriation doctrine as it developed in the California gold fields was economically efficient. Chapters 8 and 9 turn to legal issues often ignored in both gold rush histories and the legal history of water—the regulation of water quality and damage caused by bursting dams—arguing that with regard to these, too, California law provided efficient solutions.

Scalia's shadow

James May recently posted "Environmental Law Jurisprudence and Associate Justice Antonin Scalia's Legacy". The abstract:

Associate Justice Antonin Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of administrative law shaped — sometimes single-handedly — a multitude of areas that serve as stock-and-trade of environmental, energy, and natural resources lawyering across the nation. This article focuses on standing, takings, and deference to environmental agency rulemaking.

Indian water rights

Continuing coverage of the special issue of Western Legal History on Southern California water: Tanis Thorne's contribution is "Indian Water Rights in Southern California in the Progressive Era: A Case Study." Thorne writes:

The consensual opinion of water rights historians is that piecemeal legal transfer of Indian water rights to the non-Indian majority progressed unabated, decade after decade, throughout the arid American West. The water rights of Southern California Native people remained ill defined well into the twentieth century....

This study departs from the consensus position, which has argued that Indian water rights were ignored until the 1960s. In the case of the Capitan Grande Indian people of San Diego County in the early twentieth century, Indian rights were hardly ignored; they were, in fact, a subject of considerable importance to the federal government. In 1919, the El Capitan Act gave the city of San Diego the right to build the El Capitan Dam and create the El Capitan Reservoir as a city storage site. The transfer of Indian land, held under federal trust, required complicated local, state, and federal negotiations both in the 1910s and in 1932, when the El Capitan Act was amended. The Department of the Interior made a concerted effort to define and protect the Capitan Grande people's riparian rights using the state prior appropriation doctrine. The terms of transfer negotiated in 1919 anticipated  the quantification measures based on "practicably irrigable" acreage set in Arizona v. California.

Public property in Imperial Russia

Ivan Bilibin, Vasilisa the Beautiful at the Hut of Baba Yaga

A while back we noted the LSA's honorable mention for of Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014) and expressed the hope that we'd hear more about the book soon. The American Historical Review answered our prayer; its latest issue has a review by John Randolph. Some excerpts:

Pravilova perceptively observes that although historians have long debated the status of private property in Russia, little attention has been paid to public goods, distinct from the domains of the Romanovs and those of their individual subjects. Pursuing this quest for a “res publica in the imperial state” across many cultural realms—from forestry and mineralogy to arts and letters—Pravilova presents it as a powerful force in late imperial life. Though only fitfully realized before the October Revolution, this ambition encouraged the prominence of “rule by experts” in Russian statecraft, a heritage handed down to the Soviet state. It also stimulated popular demands to institutionalize the common good, expropriating it where necessary from private hands. Indeed, Pravilova argues, the greatest legacy of the search for a public domain in imperial Russia was to present a change in property rights as the essential foundation of progress, obscuring and in some cases occluding other kinds of political and economic reform.

Pravilova's engrossing study opens with a paradox. Liberal theory has long seen rule of law as the foundation of property rights. Yet autocratic Russia, where the sovereign's will was often understood to stand above all law, possessed one of the absolute property regimes in Europe, giving owners sweeping rights to hold, use, and defend their estates. Pravilova explains this by arguing that the invention of private property in its modern form in Russia rested on a promise—made by Catherine the Great and her successors—that property rights were guaranteed irrevocably and inalienably by the autocracy itself. Those who sought to limit private use of natural resources, such as the fish caught on a river or the fallen wood in the heart of a forest, had to argue that the monarch's inviolable and unlimited promise was not so inviolable and unlimited after all. For much of the first half of the nineteenth century, this proved too steep a hill to climb. As a result free Russia became a veritable ownership society. All manner of grand enterprises (capitalist or autocratic) were complicated by the individual rights of myriad landlords. The state-led emancipation of Russia's serfs in 1861 deepened this conundrum, “[leaving] the state face to face with millions of people and new proprietors, who before the reform had been placed under the administration of their landlords” (p. 57).

All the same, in the second half of the nineteenth century this fractured proprietary geography saw its absolute dominion restrained and at points undone by apologists for public property, according to Pravilova. She conceptualizes this shift neither as a purely legal evolution in property law, nor as a public campaign with a specific chronology or set of actors, but as an “ongoing reformist project” (p. 138) that labored, in an uncoordinated fashion, for much of the second half of the nineteenth century. To make this claim, she works across cultural realms with impressive fluidity, showing how similar notions animated agents in arenas as seemingly diverse as hydrology, philology, and church governance. In each of these areas, experts staked claims for cultural patrimony, arguing that a portion of Russia's rivers, religious architecture, and even its poets' private letters had to be reserved, preserved, and managed by the state. Most generally, Pravilova characterizes this “project” as reflecting a tension in the history of liberalism in Russia. Though absolute property rights had been presented by Russia's absolute rulers as an example of imperial freedom, over time society's sense of its own right to develop freely seemed to require the creation of a common inheritance so that Russia could reach its true potential. Pravilova suggests that this imperial “public domain” was far from finished or secure by 1917, but that its ideals nevertheless helped frame the radical solutions Soviet power would bring thereafter as the new state nationalized the empire and empowered science to rule it on the people's behalf.

Oysters, raisins, and water

Not a recipe for stew, but some of the elements of a US Supreme Court decision issued yesterday. Last month we noted John Eccheverria's discussion of the then-pending Horne v. Dept. of Agriculture, a case in which the court was asked to decide whether a government regulation requiring raisin growers to hand over some of their raisins to the government was a "taking" of property requiring compensation. The case seemed to bear a striking resemblance to a 1929 case, Leonard & Leonard v. Earle, in which the Supreme Court had ruled that a Maryland law requiring oyster packers to turn over shells to the state was not a taking. Echeverria noted that counsel for petitioners in Horne argued that the early case should be distinguished on the grounds that oysters, unlike raisins, were wild animals, and therefore the property of the state to begin with. This seemed to be a weak legal argument, running against Supreme Court decisions that called public ownership of wildlife "a mere fiction".

Piles of oysters in 1884 (Oysters for the Bay.Com)

It turns out that yesterday's decision bought the argument, a development with potentially far-reaching consequences for the ability of the government to protect nature without running afoul of the takings clause. Echevveria explains in a post yesterday:

Economics of Legal History

Daniel Klerman recently published an edited collection, Economics of Legal History (Elgar, 2015), which includes influential pieces on the history of natural resources law, including Harold Demsetz's "Toward a Theory of Property Rights", Robert Ellickson's "A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry".

The publisher's description:

Generations of law and economics scholars have been fascinated by history, seeing in its institutions and laws a vast database for illustrating their theories. Equally, historians have seen economic analysis as a helpful tool with which to analyze legal institutions. As a result a vibrant field has emerged in which people trained in law, economics, history and political science have all made significant contributions. This volume brings together the most important works examining legal history from an economic perspective. An original introduction by the editor provides a useful roadmap to the field.

The public trust in wildlife

John Echeverria's Takings Litigation blog recently (April 24) covered a surprising development in arguments before the US Supreme Court:

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court this past Wednesday might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case has to do with whether a federal program forcing raisin growers to turn over a portion of their crop to the government is a "taking", constitutionally requiring compensation. Echevarria explains how the public trust comes into this:

The dramatic surprise in the oral argument on Wednesday came during the discussion of the 1929 chestnut of Leonard v. Earle, a Supreme Court precedent with an uncanny resemblance to the Horne case. The case involved a takings claim based on a Maryland statute that required oyster “packers” to turn over to the State of Maryland, once the oysters had been shucked, 10% of the empty shells. The shells, though surely not as valuable as the innards, had value for roadmaking, as fertilizers, and as animal feed. The State’s purpose in procuring the shells was to arrest the “rapid exhaustion” of Maryland’s oyster beds by using the spent shells to build the depleted beds back up and provide a substrate on which young oysters could grow.  In response to the argument that the statute amounted to a taking, Justice McReynolds wrote:

“From the packer’s standpoint, empty shells are but ordinary articles of commerce, desirable because convertible into money. Their value is not large, and the part taken by the state will be so used as greatly to advantage the business of packing. The purpose in view is highly beneficent, and the means adopted are neither arbitrary nor oppressive. The federal Constitution may not be so successfully invoked by selfish packers who seek to escape an entirely reasonable contribution, and thereby to thwart a great conservation measure generally approved.”

African-American Oystermen circa mid-1800s (oysterharbor.org)

Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:

By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?

*****

By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.

Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation

After discussing a number US Supreme Court decisions, Power goes on:

Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.

But things changed under the Rehnquist and Roberts courts:

During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular. 

Holy property and the Prussian forest

More on conflicts over property rights in German forests: February's Environment and History had an article by Jeffrey Wilson, "'The holy property of the entirety of the people': The Struggle for the 'German Forest' in Prussia, 1871-1914". The abstract:

Wilhelm Heinrich Riehl (1823-1897),
 demanded the preservation of
public access to the ‘German forest’

During the nineteenth century, German intellectuals articulated the notion that the nation's identity and social peace were rooted in public access to its forests. In the late nineteenth century, however, the Prussian state sought to tighten property laws, allowing landowners to exert more control over their property and exclude interlopers. First liberals and Catholics, then conservative agrarian reformers and radical nationalists, responded with hostility to these efforts, challenging landowning elites. Whereas the romanticisation of the 'German forest' has long been seen as an expression of landowners' efforts to manipulate national sentiment, these developments illustrate the complicated relationship between nature and nation in the late nineteenth century.

Robert Jackson on public and private rights in water

Over at Legal Planet Jonathan Zasloff yesterday posted "A Hidden Property Gem From Justice Jackson", in which he admires Jackson's lucid judicial writing in the 1945 case, United States v. Willow River Power Co. The quoted passages certainly do seem like a breath of fresh air when compared, style-wise, to the opinions of today's US Supreme Court (and many other courts), but, like Zasloff, I also like the understanding of property rights expressed in the opinion. He writes:

(Wikipedia)

In this case, the federal government constructed a dam on the Mississippi River, which backed up the water onto a tributary river, reducing the ability of the tributary to produce hydroelectric power for the plaintiff’s own dam. It sued for a taking. The Court held 7-2 that there was no taking.

But the case stands out as much for the clarity of Justice Jackson’s language than anything else:

It is clear, of course, that a head of water has value, and that the Company has an economic interest in keeping the [tributary] at the lower level. But not all economic interests are “property rights;” only those economic advantages are “rights” which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion. The law long has recognized that the right of ownership in land may carry with it a legal right to enjoy some benefits from adjacent waters. But that a closed catalogue of abstract and absolute “property rights” in water hovers over a given piece of shore land good against all the world is not, in this day, a permissible assumption. We cannot start the process of decision by calling such a claim as we have here a “property right;” whether it is a property right is really the question to be answered. Such economic uses are rights only when they are legally protected interests.

As Zasloff writes, "I’m not sure as clear a statement of legal realism or positivism has ever been made." Many, including environmental historians (and also lawyers), often mistakenly attribute great importance to something being called a property right, but as Jackson explains, saying that someone has a "property right" is properly the end of a legal analysis, not its premise.