Wednesday, August 27, 2014

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.

Tuesday, August 26, 2014

Parks and indigenous populations

The modern conservation movement began at dawn on December 8, 1850, above the north fork of California’s San Joaquin River. 
So begins's Eric Michael Johnson's post, "Fire Over Ahwahnee: John Muir and the Decline of Yosemite", at his Primate Diaries blog at Scientific American. On said date American militia carried out a massacre of Ahwahneechee Indians who lived in the Yosemite Valley.
One month later, on January 13, 1851, by order of California Governor John McDougall and through a special act of the U.S. Congress, the Savage militia received federal and state support to “punish the offending tribes” in the region later to be renamed the Yosemite Valley. For the leadership of California’s newly established government the approach for dealing with the native population had become a “war of extermination.” For more than a decade afterwards the land between the Merced and Tuolumne rivers remained under permanent military occupation and eventually became a national park by order of President Theodore Roosevelt in 1906.
*****
In his famous nineteenth-century travel writings in the Sierra Nevada Mountains Muir described Yosemite not just as a picturesque marvel of nature, but as something divine that was beyond human frailties. The landscape of the “Sierra Cathedral Mountains” was a “temple lighted from above. But no temple made with hands can compare with Yosemite,” he wrote. It was a place that was “pure wildness” and where “no mark of man is visible upon it.”
*****
It’s not that Muir didn’t encounter native peoples in his travels. He did, but he found them to be “most ugly, and some of them altogether hideous.” For a wilderness as pure as his holy Yosemite “they seemed to have no right place in the landscape, and I was glad to see them fading out of sight down the pass.” But, ironically, these “strange creatures” as Muir described them were the ones responsible for many of the features that gave Yosemite Valley its park-like appearance, the “landscape gardens” that Muir so valued. It is this forgotten legacy that has undermined many of the successes in the U.S. and even the global conservation movement today, one that traces directly back to John Savage and John Muir and the first protected wilderness site that later became the model followed around the world. 
It wasn’t only Muir who was struck by the ordered beauty of Yosemite Valley. Lafayette Bunnell, the New York physician who accompanied Savage on his exploits in 1851, recalled that “the valley at the time of discovery presented the appearance of a well kept park.” Likewise, Galen Clark who was the state guardian of the Yosemite Grant after it was ceded to California, remembered similar conditions when he first visited in 1855. “At the time,” Clark wrote, “there was no undergrowth of young trees to obstruct clear open views in any part of the valley from one side of the Merced River across to the base of the opposite wall.”
David Iliff, Tunnel View, Yosemite Valley
(License: CC-BY-SA 3.0)
However, these conditions didn’t stay that way for long. Forty years later Clark found that Yosemite’s open meadowland had all but disappeared, estimating that it had been “at least four times as large as at the present time.” The reason for this, known in the nineteenth century but little appreciated until recently, were the many ways that Yosemite’s first inhabitants had transformed their environment over hundreds, if not thousands, of years. Chief among these was the strategic use of fire.

Monday, August 25, 2014

More on TVA v Hill

H-Environment recently posted Drew Swanson's review of Zygmunt Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River (Yale UP, 2013). (A discussion of the snail darter case was posted here a few months ago.) Swanson writes:
Plater’s narrative offers several insights into both the case and 1970s environmentalism. First, the book highlights the immense complexity of these legal and political battles, walking readers through the grinding work of contacting representatives, building support networks of activists, researching cases, and filing briefs; The Snail Darter and the Dam moves much of this hidden labor out of the shadows. Second, Plater’s experience demonstrates the shoestring nature of many environmental organizations at the time. Often operating out of attics or cramped rental offices and subsisting on savings and donations from a few dedicated backers, these groups still found ways to influence the political process, and environmental historians would do well to follow Plater’s lead and pay more attention to lobbyists. Finally, the author argues for the immense importance of the media in framing environmental issues and swaying public opinion. For TVA vs. Hill, Plater is convinced that the national media’s “avoidance of complex thinking” reflected “a low opinion, apparently shared by many within Washington, of the intellectual ability and interest of the American populace” (p. 176). Once newspapers and television news defined the case as a tiny fish versus an enormous dam project, the popular case was already all but doomed.
*****
Snail darter
(USFWS Photo)
Where the book is least effective is in supporting Plater’s argument that the snail darter was more than just a tool of opportunity for dam opponents. He asserts that he and other supporters of the darter were not “hypocrites as well as fools, environmental extremists manipulating the darter to misuse the law over a technicality,” and yet throughout the book Plater admits to questioning their motives and their implications (p. 43). The issue is both troubling and refreshing for Plater’s honesty. 

Sunday, August 24, 2014

The background to the Wilderness Act

The 50th anniversary of the US Wilderness Act of 1964 continues to spark interest. H-Environment recently posted a review by Sarah Mittlefehldt of The Wilderness Writings of Howard Zahniser, edited by Mark Harvey (Univeristy of Washington Press, 2014). Mittlefehldt writes:
These carefully selected writings demonstrate the power of the written word to turn ideals into policy, and ultimately, to turn policy into protected landscapes. Zahniser’s prophetic devotion to wilderness and his strong, skillful prose helped to codify a lofty vision and to successfully navigate a complicated political arena. These linguistic and political acrobatics ultimately yielded the 1964 Wilderness Act, the country’s strongest legal mechanism for protecting wild places.
*****
Several environmental historians have recently explored the impact that public designation has had on people who worked or lived in protected areas like national parks and federal wilderness areas, and although Harvey includes passages in which Zahniser spoke about the need for federal control, one wonders if he had  more to say about the local politics of wilderness designation. From the selections, it is clear that Zahniser believed that local and state officials were more vulnerable to the forces that threatened wilderness, and he frequently invoked the utilitarian language of wilderness being for all to enjoy—including both present and future generations. But what about those who lived in or near protected areas? Although the style and spirit of Zahniser’s writing often echoed that of civil rights advocates in the 1950s and ‘60s (perhaps a reflection of his upbringing as the son and nephew of Free Methodist ministers), his attitudes and thoughts about social justice issues, specifically in regard to federally designated wilderness areas, are left unexplored. Perhaps that is terrain for some future historian. 

Tuesday, August 5, 2014

Water law in colonial Victoria

In a follow-up to their recent article on the regulation of mine tailings in colonial Victoria, Peter Davies and Susan Lawrence recently published an article on the history of water law in the Victorian goldfields: "A 'mere thread of land': Water races, gold mining and water law in colonial Victoria". The abstract:

Water law in Victoria has its origins in arrangements made during the gold rush to satisfy the needs of miners and towndwellers on the goldfields. Rights of access to water and diversion practices were worked out in the peculiar circumstances of the new colony during the 1850s and 1860s, where economic and social conditions were transformed by the discovery of gold. Miners needed abundant, reliable supplies of water to wash gold from the earth and to power steam engines and processing machinery. Laws regulating access to water, however, were poorly defined during this period, with a mix of English common law and American legal doctrine drawn on and adapted to local conditions. This was in response to disputes that quickly emerged over the nature and scale of water diversions, priority of access and the sale of water rights. Conflict was exacerbated by the highly variable nature of rainfall in Victoria and frequent dry seasons which often disrupted mining activity. Out of this confusion, colonial officials gradually fashioned rules to regulate access to water. The State asserted increasing authority over the distribution of water in this period, laying the foundations for the effective public ownership of water rights by the 1880s. The Victorian experience provided leadership in establishing water regulations which the other Australian colonies later followed.

Friday, August 1, 2014

Water law at the UK Supreme Court

Nandini Chatterjee recently posted at Imperial & Global Forum on an exhibition opening today at the UK Supreme Court in London, "A Court at the Crossroads of Empire: Stories from the Judicial Committee of the Privy Council", which she is co-curating. The exhibition website explains that it:
)
uses a range of case studies to explore how the JCPC served as an evolving hub of the British Empire - both shaping and shaped by a wide range of different cultures and communities - and how the judges serving on the JCPC applied the common law to both translate and mediate at the crossroads of Britain's colonial interests.
The exhibition includes panels created by my colleague Assaf Likhovski and me on the development of water law and constitutional law in Mandate Palestine through the 1926 Urtas Springs case (Jerusalem-Jaffa District Commissioner v Murra).

I also wrote about the case in a recent article:
Serious objections were raised... [to] the transfer of water from the village of Artas (spelled “Urtas” in the official documents of the time), south of Bethlehem, to Jerusalem. Arab opposition to the attempt of the Jerusalem Water Supply Department to ameliorate the shortage by pumping water from Artas led to a fiercely fought legal battle....
Realizing that the water plan was open to legal attack, the Palestine government enacted legislation, known as the Urtas Springs Ordinance, 1925, empowering the High Commissioner to authorize the Jerusalem municipality to take water from the Artas spring for a period of up to 12 months. Water sufficient for the Artas inhabitants’ domestic uses, animal watering, and irrigation of tree plantations was immune to taking. While water used for irrigating annual crops could be taken for the Jerusalem system, the Ordinance ordered that compensation be paid for damage to crops and for losses from inability to plant crops due to the reduction in water available to the village. Disputes between Artas residents and the Jerusalem water department over the level of compensation were to be decided by an arbitrator to be appointed by the High Commissioner, with no appeal from his decision.
Moghannam E. Moghannam, the plaintiffs' attorney
With a statute explicitly authorizing the water diversion, the only possible legal arguments available to the Artas residents were of the constitutional type, impugning the validity of the legislation itself. The Artas petitioners contended that the Urtas Ordinance violated their civil rights by taking private property—water—and providing an inadequate compensation mechanism, with no right of recourse to the regular courts of the land. Such a taking was in violation, they argued, of Article 2 of the League of Nations Mandate, which made the Mandatory responsible for “safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” Since Palestine Order in Council (Article 17(I)(3)) provided that “no Ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate”, they claimed, this violation of the Mandate invalidated the legislation in question.

Thursday, July 31, 2014

EP Thompson on (forest) law in history

Kurt Newman at US Intellectual History Blog had an interesting post the other day on the place of legal history in the thought of Marxist historian EP Thompson. The post includes a long quote from Thompson's Whigs and Hunters (1975), arguing that law (here, specifically the early eighteenth century English law against commoners' traditional uses of the forests) functioned as more than just a mystifying tool of (upper-)class power. Some selections:
To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.
What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.
When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.
For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…
...people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.

Monday, July 28, 2014

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:
Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.
School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)

Friday, July 25, 2014

Environmental law and policy in Brazil (1930-1945)

[Today we have a guest post from Frederico Freitas, a Ph.D. Candidate in Latin American History at Stanford, who recently presented a paper at the World Congress of Environmental History on environmental law during the Vargas regime:]

Ranger of the newly created Forest Service, c. 1944
(O Serviço Florestal no Biênio 1943-1944
(Rio de Janeiro: Ministry of Agriculture, 1945))
Brazil during the first Getúlio Vargas regime (1930-1945) produced a boom in conservationist legislation that included a forest code, a new water law, the creation of the country's first national parks, and the establishment of a forest agency and a national institute of forestry. The move by the Vargas regime to implement a conservationist agenda was unprecedented—apart from the establishment of botanical gardens and a few protected semi-urban forests around Rio de Janeiro, previous governments had never acted to establish a conservation program. The change brought by Vargas had its root in a new phenomenon—the appearance on the Brazilian national stage of a cadre of conservationists who were able to align US- and Europe-born ideas of conservation of nature with a nationalist discourse akin to the one put forward by Vargas’s ideologues.

Yet, all the energy invested in environmental legislation failed to change the previous pattern of lack of state commitment to environmental issues. In fact, the new legislation concealed a reality of chronic lack of federal control over both public and private land. Brazil had a long tradition of what historian José Drummond called a “weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, flora, and fauna.” After the fall of the Brazilian monarchy and the promulgation of the Republican constitution of 1891, all public land, which had been in control of the Brazilian state in the nineteenth century, was then turned to the hand of state governments. In the Vargas years the Brazilian federal government had almost no public land left to manage besides a handful of federal and military properties and the land alongside railroads. 

In the 1930s the federal government not only did not control most of Brazil’s public land but also had no legal instrument to expropriate private land. It was only in 1941 that the central government issued a decree-law granting itself the powers to expropriate land for public interest. This new legislation allowed the federal government to expropriate both private land and public land owned by state or municipal governments. However, it failed to trigger an era of federal intervention in land issues. The regime of Getúlio Vargas, despite being turned into a fascist-leaning dictatorship after 1937, lacked the power to curb the interest of the local agrarian elites.

Thursday, July 24, 2014

The Versailles Conference: upcoming deadlines

The deadline for the American Society for Environmental History 2015 conference in Washington DC (March 2015) has been extended till July 31. The theme, "Turning Protest Into Policy: Environmental Values and Governance in Changing Societies", seems particularly appropriate for legal-themed papers and panels.

The British Legal History Conference 2015 (Reading, July 2015) has a call for papers out; the themes is "Law: Challenges to Authority and the Recognition of Rights". Paper proposals are due September 30.

The European Society for Environmental History's biennial conference will be held in Versailles in June-July 2015. This conference, too, seems particularly welcoming for law-related work, as the call for proposals says, "Through an emphasis on disciplines, methods, and questions, we hope to encourage dialogue with all types of history, other humanities and social sciences, and the natural sciences." Submissions are due by October 1.

Feel free to use the Environment, Law, and History listserve to find potential panelists with similar interests!

Attendees at an earlier conference at Versailles