50th anniversary of the US Wilderness Act

The website of the 50th Anniversary National Wilderness Planning Team (Wilderness50) is dedicated to celebrating the 50th anniversary of the 1964 Wilderness Act:

In 2014, our nation will celebrate "50 Years of Wilderness" and this website has been created to document this historical commemoration honoring America's "True American Legacy of Wilderness." A national team, called Wilderness50, has been created to plan educational events, projects, programs, and products to raise awareness of wilderness during the 50th anniversary year. This website provides a map and listing of all local, regional, and national 50th anniversary events that are occurring nation-wide, including the National Wilderness Conference. It also provides access to resources for individuals or community groups interested in hosting a 50th anniversary event. 

The deadline for proposals for the conference, to be held in Albuquerque October 15-19, 2014, is January 10, 2014. Scholarships are available.

Contributions are also being solicited for contributions to a Smithsonian Museum of Natural History exhibit entitled, "Wilderness Forever: 50 Years of Protecting America's Wild Places", set to open next September.

The Environmental Moment

Environmental History has a review by Gary Kroll of The Environmental Moment, 1968–1972, a collection of primary-source documents edited by David Stradling (U Washington Press, 2012). The book contains a number of classic legal sources, including the National Environmental Policy Act and Justice Douglas's iconic dissent in Sierra Club v. Morton ("Mineral King"), in which he argued for granting standing to inanimate natural objects, as well as "voices—Reagan, Joseph Ling, and John Maddox—of those who opposed or criticized the costs of new forms of regulation."

Kroll writes:

The central purpose of this collection is to capture that heady period of protest and response between 1968 and 1972, but Stradling sends out tendrils both fore and aft and all the while directs us to interpretive themes that have emerged from the social turn in environmental historiography.

He sums up:

By and large, Stradling has given me something that is hard to resist.

More on "The Mortal Sea"

A while back we re-posted George Conk's review of W. Jeffrey Bolster's award-winning The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). Now Environmental History has a review of the book by Michael J. Chiarappa. From the review:

Desiring “to write the ocean into history,” Bolster connects the fate of the northwest Atlantic's ecosystem to critical European antecedents that have not been fully examined in a transatlantic context. Given the depletion that had occurred in their home waters, sixteenth- and seventeenth-century Europeans gradually brought the northwest Atlantic's abundance—indeed, a stark contrast to the Old World's crippled marine ecosystem—into their commercial orbit. As permanent settlement ensued along the New England coastline, fishing effort began restructuring the sea's biomass by targeting species that were within ready reach—anadromous fish, sea mammals, and waterfowl, as well as nearby stocks of cod and mackerel. Sublime abundance, accompanied by a providential mindset, fueled these early use patterns. But Bolster challenges us not to be overly seduced by this narrative, and instead, to consider the rumblings of a nascent precautionary approach among New Englanders who still had Old World depletion fresh in their minds.

The paradox of precautionary sentiment, of wanting to fish but also wanting to preserve fish, runs throughout The Mortal Sea. In the nineteenth century, more efficient harvesting technology sharpened these debates in both tone and substance as signature sea fishes such as cod and mackerel showed stress, along with their forage base, menhaden. In a political and cultural climate that was hardly inclined to deny fishing rights, competing claims and perspectives devolved along various lines, but one loomed large: whose experience, be it small-scale fishermen, scientists, politicians, or capital-intensive fishing firms, would exert authority and be credibly accounted for in reckoning the increasingly complicated environmental politics of the northwest Atlantic?

Whales, seals, and foxes

Chris Tomlins recently posted "Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America", an extended and thoughtful comment on three articles from the University of Toronto Law Journal’s symposium on ferae naturae and the law of property (by Angela Fernandez, Robert Deal, and Bruce Ziff), containing, as well, extended reflections on Moby-Dick and on Robert Ellickson's Order Without Law.

The article, and the works it discusses, have a lot to say about the legal histories of whale-, seal-, and fox-hunting. Tomlins ends with some thoughts (condensed here, and with footnotes omitted) about directions that have not been taken in these histories:

from a diligent observer

Throughout Moby-Dick, the whale remains enigmatically silent. Historians don’t think much of those who ventriloquize (speak for) silent others. It is considered better form to try to find their voices so they can speak for themselves. Still, the void is sorely tempting. We know what Ahab said to the whale, at the end, on the way down: ‘to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.’ One wonders what the whale might have had to say in reply. I fancy what we would hear would be sad and bemused: these humans, their God, His promise of redemption, His grant of dominion . . . all so unfortunately unavoidable.

*****

Perhaps these cases may eventually help us to find our way to the animals rather than just to the law. 

Green Capitalism?

Here's a call for papers by the German Historical Institute in Washington that may be of interest to those working at the intersection of legal and environmental history: "Green Capitalism? Exploring the Crossroads of Environmental and Business History", a conference to be held October 30-31, 2014 at the Hagley Museum and Library in Wilmington, Delaware. From the call:

from Alex Hetherington
Sustainability Blog

We invite papers that consider in specific historical contexts the extent to which the business enterprises that are central to capitalism operated in an environmentally sound or detrimental manner by the way they dealt with their refuse, by managing their use of resources, and mitigating or ignoring any harmful impact on those who handled their products or are affected by their waste. Though business activities have had many deleterious environmental consequences, businesses sometimes have acted to protect the environment, reduce their direct and indirect environmental impact, and promote environmental reform in society. That is true now, but it also was sometimes the case long before the rise of modern environmentalism.

Proposals are due May 14, 2014. More here.

The history of precaution

A little while back Noga Morag-Levine posted on "The History of Precaution" over at RegBlog. Her work on the topic is a good example of how historical research can help make sense of current legal and policy issues, in this case the proper understanding of the much hyped and much maligned "precautionary principle".  As Morag-Levine explains,

comparative environmental scholars have recently focused their attention on whether, when, and why Europe has become more precautionary than the United States. This inquiry has entailed a debate on the capacity of distinct American and European regulatory traditions to account for transatlantic divisions. The Reality of Precaution, by Jonathan Wiener with several co-editors, and The Politics of Precaution, by David Vogel, are among the most notable contributions to this discussion.  The two books concur that any such legal-institutional traditions are irrelevant to the question at hand.

Morag-Levine thinks otherwise:

These disparate views of regulatory autonomy correspond closely to the divergent administrative law traditions of continental and Anglo-American law.   Debate over health and safety regulation in both Britain and the US during the 19th Century revolved around competing models of administration—the first termed “nuisance,” the second “police.”

Environmental-legal history in the US Supreme Court

The 1920 US Supreme Court case Missouri v Holland (252 U.S. 416), which upheld the constitutionality of the federal law implementing the US-UK/Canada Migratory Bird Treaty Convention of 1916, an early environmental treaty, is at issue in a case currently before the Supreme Court. The case's soap-opera details (described by Holly Doremus over at Legal Planet), involving a woman's attempt to poison her best friend, pregnant with a child fathered by the poisoner's husband, raises the constitutional issue of whether an international treaty gives the federal government jurisdiction over an activity taking place within a single state. Doremus explains the historical background:

Congress’s first effort at protecting migratory birds from lax state hunting regulations had been struck down as exceeding federal constitutional authority. After the President negotiated the Migratory Bird Treaty with Canada, Congress tried again, imposing essentially the same restrictions based on the Treaty. This time the litigation reached the Supreme Court and the US won. The Court held that:

It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could . . .

Environment at ASLH - Report

I wasn't able to make it to all the environment-related papers at this weekend's annual meeting of the American Society for Legal History in Miami, but here's a brief report of the papers I heard:

Friday morning's exchange panel with the Israeli History and Law Association had two papers on environmental topics. Yair Sagy and Nadia Tzimerman's “‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952” uncovered the decisive influence of an American oilman and his Israeli son-in-law on the shape of the statute governing oil and gas exploration and exploitation in Israel, a law which has emerged from its longstanding obscurity in the wake of recent major finds of natural gas off Israel's coast. (Sagy and Tzimerman's research was the subject of recent press coverage in Israel, where legal and political battles over the law are raging.) Orli Sela's “TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel” talked about the influence of American law and figures such as Walter Lowdermilk on the Israeli Water Law of 1959.

Later in the day I heard a paper by myself as part of a panel on attitudes to American law in nineteenth-century Canada. My paper, “How Smoothly Did U.S. Water Law Flow Northwards?”, examined the use that Canadian riparian-rights cases made of American sources in the first half of the nineteenth century, noting that Canadians often cited these sources not only for their statements of American law, but also for their statements of French water law.

At the same time, at the Kathryn T. Preyer Prize Panel, Matthew Axtell presented his “Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy”, a paper that we've noted previously.

Additional reports or comments on these papers or others are welcome!

Environment at ASLH

The upcoming meeting Annual Meeting of the American Society for Legal History in Miami (Nov. 7-9) looks to be strong on a variety of topics, but papers on the environment seem to be few and far between. Nevertheless the program promises a number of legal history papers, noted below, with an environmental angle (going by their titles). If you know of more, please let us know in the comments section.

Please also contact me if you're planning on attending the conference and are interested in meeting up with others interested in environmental aspects of legal history, or if you're interested in contributing a blog entry on some of these papers.



Friday

Panel A.5

Yair Sagy & Nadia Tzimerman, University of Haifa
‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952

Orli Sela, Bar-Ilan University
TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel

Panel C.3

David Schorr, Tel Aviv University
How Smoothly Did U.S. Water Law Flow Northwards?

Panel C.6

Matthew Axtell, Princeton University
Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy

Saturday

Panel D.4

Daniel S. Margolies, Virginia Wesleyan College
Imperial Reorderings in United States Extraterritorial Trade, Resource, and Regulatory Regimes, 1945-1958

An administrative history of the US Bureau of Land Management

The latest Environmental History has a review by James C. Lewis of James R. Skillen's "The Nation's Largest Landlord: The Bureau of Land Management in the American West" (University Press of Kansas, 2009). Lewis writes:

The BLM has always operated in the shadow of the Forest Service. To most easterners—and probably many westerners—the agency... still remains largely unfamiliar, its purpose unclear and amorphous. It has been that way since it formed in 1946 when Congress merged the Grazing Service and the General Land Office. For its first thirty years the BLM did not even have an organic act that laid out its mandate. Originally nicknamed “the Bureau of Livestock and Mines” because of the resource uses the agency emphasized, which also included logging, during those thirty years western congressmen deliberately limited its political power and worked to keep it a decentralized agency responsive to the needs of local users.

Passage of federal environmental legislation in the 1970s and an organic act in 1976 forced the agency to change how and why it managed its nameless lands (they finally received a name in 2008—the “National System of Public Lands”). In the 1990s, after ordered by the Clinton administration to manage ecosystem preservation, the BLM was dubbed the “Bureau of Landscapes and Monuments” because it became an agency more focused on preserving landscapes and welcoming of recreationists than it had been historically. The election of George W. Bush in 2000 saw the pendulum swing back toward an emphasis on resource development, leaving BLM employees and the general public confused again as to the bureau's mission and purpose.