Review: Resolving Complex Resource Problems

1. Review: Resolving Complex Resource Problems • ANWR example • Uncertainty • Federalism; nationalism • Who should decide? Aren’t they “national” resources? McCulloch v. Maryland • Whose interests should be considered and what weight should they be given? • What is the risk of “rent-seeking”?

2. Review: Resource Management Tools • Prescriptive regulations • “Command and control” • Property rights • Leases, fee estates, easements • Market Instruments • Payments and penalties • Tradable permits • Public Disclosure • Example of EPCRTKA

3. Q & D: The Red Snapper Fishery • If over-fishing is occurring, how would you choose to address the problem? • Compare • Prescriptive regulation • Property rights • Market instruments (cap and trade; fines; taxes) • Public disclosure • Any difference in approach to commercial and recreational fisherman?

4. Consider the New Zealand Solution • Individual Transferable Quotas (ITQ) • First proposed for New Zealand fisheries in 1983 and finally introduced in 1986 • These quotas are permanent but restricted to a given species and location • Together the ITQs add up to a Total Allowable Catch (TAC) which ensures that only a sustainable number of fish are caught • How might New Zealand address aboriginal rights under this system? • How should they address recreational fishing rights?

5. Private Property and Public Rights • What does Professor Cole mean by “private” property? • “not … allodial [unfettered] property devoid of public rights, but property nominally owned by private individuals, subject to various group or public interests.” • What relevance does Professor Cole’s view of private property have to the study of natural resources law? • Consider the recent debate over ownership of the littoral (lakeside) land • What does Cole’s view suggest about “takings” law

6. Should We Privatize Public Lands? • Costs of managing our public lands far exceed revenues… • Is this a sufficient reason in itself to support the sale of public lands? • What values are not captured by these figures? • Would privatizing favor particular uses? • Consider Anderson’s proposal to issue every citizen a share certificate. Would this avoid the advantage that industry might have in a pure auction?

7. Historical and Constitutional Geography What was driving expansion of U.S. territory? • Manifest destiny • Popularized and aggressively pursued by Democratic President James K. Polk • Polk only served one term (1845-1849). Although politically popular he chose not to seek reelection in 1848, and he died just 3 months after leaving office at the age of only 53 • Although not well-known, historians generally regard Polk as one of our better presidents • Federal policy of promoting western expansion and settlement was made possible by the disposition of public lands and resources. • These “lords of yesterday,” who carried out the expansion, retain substantial power today

8. How did the United States evolve from original 13 colonies? • British Proclamation of 1763: Common Lands Policy • No settlement west of Appalachian mountains • Northwest Ordinance of 1787 • Following independence from England, provided the basis upon which all future states would enter the Union • The Northwest Territories would eventually become Ohio, Indiana, Illinois, Michigan, Wisconsin and Minnesota • States would enter on “equal footing;” revenue from sale of a portion of each township would support schools; neither slavery nor involuntary servitude were allowed; and finally, a good faith effort would be made to respect the Indians in the territory. • By 1802 all seven of the original colonies that held western territory had ceded their lands to the federal government

9. In 1803 Louisiana territory was purchased from France (about 523 million acres -- doubled the size of U.S.). The Transcontinental (Adams-Onis) Treaty of 1819 with Spain fixed borders between Louisiana Territory and Mexico • In 1819 treaty, Spain ceded Florida to U.S. • Texas gained independence from Mexico in 1836, and was admitted to Union in 1845 through annexation (Texas retained its public lands.) • In the Treaty of Oregon in 1846, after 28 years of peaceful “joint occupation”, Britain relinquished its claims to the Oregon territory south of the 49th parallel.

10. Treaty of Guadalupe Hidalgo of 1848 (Mexican Cession) • Mexico ceded California, Nevada, Utah, most of Arizona, parts of Colorado, New Mexico, and Wyoming to U.S. • 1850 purchase of 79 million acres from Texas • Parts of Colorado, New Mexico, Oklahoma, and Wyoming • Gadsden Purchase Treaty of 1853 • 19 millions acres south of Gila River includes parts of southern Arizona and New Mexico • Alaskan Purchase of 1867 by Treaty with Russia • Annexation of Hawaii in 1898

12. Acquisition of Lands from the Indians • U.S. Const. art. 1, § 8, cl.3: Gives Congress the power to regulate commerce with the Indian Tribes • Johnson v. M’Intosh • Johnson claims title through tribal grants; M’Intosh by patent from U.S. (What is a patent?) • Property rights of the original habitats not “disregarded” but “impaired” • They had rights of possession and use, but not disposal (But they were entitled to protection) • Federal government had the power to extinguish their title • Discovery gave title to those who made it • Not for U.S. courts to question validity of title acquired from Britain (Why not?) • What is the nature of aboriginal title? • Can be extinguished by U.S. without compensation • Tribe must show actual, continuous, and exclusive possession

13. Treatment of Native Americans • Cohen suggests that we consider not in today’s context but in its historic context • Rasband describes a series of approaches to dealing with Indians • Federal consent and control (Trade and Intercourse Acts) • Removal policy (“Trail of Tears”) • http://www.rosecity.net/tears/trail/map.html • Reservation policy • Assimilation policy (Allotment Acts) • Between 1950’s and today, various shifts between self-determination and assimilation (Self-determination seems well-established today.)

14. Federal Power Over Western Territories • Equal Footing Doctrine • Northwest Ordinance assured new states entered Union on equal footing • Existing colonies wanted federal property in the territories • Pollard v. Hagan • Upheld state’s title to land under navigable waters • Dictum went much farther • Equal footing compelled by constitution • Federal government had no authority to keep and regulate public lands • Enclave clause established limits of federal power over public land • Pollard dictum has never been followed • What would the national landscape look like if Pollard dictum had prevailed?

15. Lands Under Navigable Waters • Martin v. Waddell • Held by the States in trust for the people • State vs. federal rights over navigable water • Strong presumption that lands under navigable waters are held by the State (Utah case) • But these rights can be defeated by clear federal grant (Couer d’Alene) or reservation (ANWR) of such rights prior to Statehood

16. Q & D: Navigable Waters • Navigability in fact test from The Daniel Ball • “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”

17. Review • Manifest destiny and its implications for disposition of public lands • Treatment of American Indians and its relevance to resource law • “Discovery” doctrine: The right to extinguish Indian title • Aboriginal title: A possessory right only • Evolution of Indian policy • Equal footing doctrine • Northwest Ordinance of 1787 • Pollard v. Hagan • Ownership of navigable waters bed below mean high tide • Martin v. Waddell illustrative

18. Q & D 4: The Scope of Federal Power • Does it matter that the federal government owns 83% of Nevada but only 0.3% of New York? Are these states on “equal footing”? • General Condemnation Act of 1888: • Authorizes condemnation whenever “necessary or advantageous to the Government….” • No need to use the Enclave Clause • U.S. v. Gettysburg Elec. R.R. • Upholds condemnation of land for inclusion in a public park

19. The Public Trust Doctrine • Certain resources that are historically owned and controlled by the States are so closely tied to public rights and interests that they are incapable of alienation • The doctrine first arose in the context of navigable waters • Recall the Pollard and Martin decisions • What is the nature of the trust? What is its purpose?

20. Illinois Central RR. v. IllinoisMap of Chicago Harborhttp://www.lrc.usace.army.mil/co-o/Chgo_Hbr02.htm

21. Illinois Central R.R. v. Illinois • Title to land under navigable waters is held in trust for people • Grants that promote public interest or that do not cause substantial impairment of those interests are lawful • Grant to railroad was “revocable” • Why wasn’t it void outright? • Consider Court’s references to Martin v. Waddell and Arnold v. Mundy • What does this tell you about the scope of the public trust “servitude”? • Is the public trust doctrine federal or state law? Constitutional or common law? Why does it matter?

22. Q & D: Public Trust • Suppose Illinois Central had been filed by private citizens rather than the State. What result? • Consider Arizona Center for the Public Interest v. Hassell • Struck down Arizona law granting title to beds of navigable streams to adjacent owners. • Consider the potential scope of the public doctrine to other natural resources • Should it apply to the waters themselves; actions that could impact navigable waters; public recreational rights; public park lands; wildlife

23. Expanding the Scope of the Trust • Why might the potential expansion of the doctrine be controversial? • What concerns does the public trust doctrine raise with respect to… • Separation of powers? • Good governance? • Governmental accountability? • Respect for property rights? • Procedural fairness? • How might a supporter of the doctrine respond to these concerns?

24. Lake Erie Shore Controversy • Ohio H.B. 218 • Would grant to Lake Erie shore owners title to shoreline to water’s edge (Passed House; stalled in Senate) • Many landowners claim they have deeds supporting such rights • State v. Cleveland & Pittsburgh Railroad. Co., 94 Ohio St. 61 (1916) • Ohio Supreme Court first recognized that the scope of public trust property extends to the high water mark • “The state as trustee for the public cannot, by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created.” • If the bill passes it will likely be challenged in court. What result would you expect?

25. Problem Exercise: Indian Fishing Rights • Indian Treaty Rights • “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory ….; Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens….” • U.S. v. Washington and progeny • Treaty Clause gave Tribes rights to 50% of fish as necessary to secure a “moderate living.” • Consider – • Discovery doctrine • American policy of fair dealing with Tribes • Equal footing doctrine • Public trust doctrine • What impact on shell fishing rights?

26. United States v. Washington, 157 F.3d 630  (9th Cir. 1998) (Shellfish Case) • The Shellfish proviso prohibited Tribes from harvesting shellfish on most commercial growers' property • Court imposed time, place, and manner restrictions on the Tribes' ability to harvest from privately owned land • Tribes shellfish rights were limited by “moderate living” standard • Special masters hear particular disputes • Court rejected lower court decision to allow three of four special masters to be designated by non-Tribal parties

27. Public Land Policy • Disposition period • 1776-1891 • Reservation period (Teddy Roosevelt and Progressive era) • 1892-1905 • Management period • 1906-present • NOTE: There is considerable overlap among the three periods

28. Chain of Title • A full title search outside the original 13 colonies and a few other early states (Tennessee, West Virginia, Kentucky) traces title back to the patent from the United States • A “patent” is the original grant of title from the United States • Jeffersonian Survey System had important influence on land use and management • First used in Ohio

29. Jeffersonian Survey System • Townships are numbered from baselines and meridians. • E.g., T5N, R6W, 6th P.M. • Under the Land Ordinance of 1796, all future public land surveys established 6 mile square townships, composed of 36 one mile square sections. But the Land Ordinance also created the Congressional Military Tract in the heart of Ohio which used 5 mile square townships, • Sections described in quarters and halves • E.g., E½SE¼, § 13, T5N, R6W, 6th P.M. • States granted section 16 (and some, 2, 32, and 36) to support public schools

30. Review • Public trust doctrine • The principle that certain public assets are so important to the public good that they are “incapable of alienation.” • Historically limited to land under navigable waters, but arguably includes the water itself, and in theory could be extended to encompass other important public assets • Disposition of public land • Evolved from disposition to reservation to management • Review of Jeffersonian Survey System

31. Township and Range Maphttp://www.ca.blm.gov/pa/cadastral/meridian.html

32. Metes and Bounds Descriptions • A metes and bounds description is a legal description of a parcel of land that begins at a well-marked point and follows the boundaries, using directions and distances around the tract, back to the place of beginning • The word “metes” refers to directions and distances, and “bounds” refers to monuments, both physical and legal. • Here’s an example: • http://www.firstam.com/faf/dimensions/metes.html

33. BLM Master Title Plat (Az.)http://azwww.az.blm.gov/cadastral/java_frm.cfm

34. Land Grants to the States • School sections to the states • Section 16 until 1850 • Sections 16 and 36 until 1894 • Sections 2, 16, 32, and 36 after 1894 • Additional grants for other purposes • See discussion of Arizona Enabling Act, p. 118 • Morrill Act of 1862 gave every state 30,000 acres of federal land to establish agriculture and mechanical colleges. These A & M schools are often referred to as the “land grant” colleges. Many have evolved into leading universities.

35. Land Grants to Settlers • Initial efforts to sell land to settlers were not very successful. • Settlers wanted the land for free and if the federal government was not inclined to give they would just squat on the land • Preemption Act of 1841 allowed squatters to purchase lands they had settled for $1.25/acre. • Homestead Act of 1862 allowed citizens to enter 160 acres of land and receive the land for free when they “proved up” • Could purchase the land for $1.25 per acre after 6 months instead of proving up • Outside the Upper Midwest, implementation of the law was marred by fraud and abuse, in many cases to benefit large landholders • What was motivating this generosity by the federal government? Why did they tolerate abuse?

36. Land Grants to Settlers (continued) • Enlarged Homestead Act of 1909 allowed entry on 320 acres • Stockraising Homestead Act of 1916 on 640 acres • Federal government retained the minerals • Timber Culture Act • 160 acres of timber lands • Desert Lands Act of 1877 • 640 acres of desert land had to be irrigated • Timber and Stone Act of 1878 • General Mining Law of 1872

37. Land Grants to Railroads • A classic example of public choice theory • Railroads initially given free rights-of way; then six miles on either side of right-of-way; then 10; then 20; one railroad got 40! • Was it truly necessary to give away all of this land to promote the railroad? • Railroads were given land in excess of the size of Montana! • What were the policy reasons for this approach? What is its legacy? • RR land grants covered 10% of continental U.S. (Only about ¾ were actually transferred to RR) • Consider influence as a result of checkerboard

38. Railroad Land Grantshttp://memory.loc.gov/award/mhsdalad/120000//120033v.jpg

39. Checkerboard Pattern: (Depicts UP land ownership just north of Laramie, Wyominghttp://www.coxrail.com/land-grants.htm

40. The Land Grant Era • Classic examples of public choice theory • Railroads, private citizens and even perhaps with state land grants • But as Carstensen suggests, perhaps it was all inevitable – even necessary – if the larger goals of establishing a nation on the scale of the U.S. was to be achieved.

41. Q & D 1: The Lords of Yesterday • Cattle barons, mining companies, timber companies used the land grant laws to establish their hold on the western landscape • Despite changing times and changing values, it has been difficult to reorient public land policy. Why?

42. Q & D 2: In Lieu Selections • States were allowed to select lands in lieu of school lands that were not transferred because of prior reservations or sale • Must be roughly equal value • What if the purposes for which lands granted were not being well-served? • Note the problems posed by managing isolated school sections • What is the solution?

43. Retention of the Public Lands • Early reservations • National Parks • National monuments • The Antiquities Act of 1906 • Forest reserves • General Revision Act of 1891 • Forest Management Act (Organic Act) of 1897 • T. Roosevelt and G. Pinchot • Wildlife Refuges

44. United States v. Midwest Oil • President Taft withdrew more than 3 million acres of lands in Wyoming and California known to be valuable for oil • Lands withdrawn “in aid of legislation” • What did this mean? Isn’t the order in direct contravention of the disposition laws? • Should he have claimed “national security”? • The Constitution provides that – • “The Executive power shall be vested in the President…” Art. II, §1, cl.1. but … • “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States…” Art. IV, §3, cl. 2.

45. Midwest Oil • Court notes that Presidents had issued hundreds of executive orders over the years creating and modifying Indian reservations, military reservations, and bird reserves • “Nothing was more natural than to retain what the Government already owned.” • “Government is a practical affair” • Long-continued practice acquiesced in by Congress • Consistent with the Constitution? • Note the dissent; suggests that other reservations were made for purposes either authorized by Congress or where grants were made for purposes that could not be ascertained

46. Q & D: Reservations vs. Withdrawals • Reservations: Lands retained for particular purpose—e.g. forest reserves; Indian reserves; bird reserves • Withdrawals: Orders that make certain public land laws inoperable on the withdrawn lands • Lands might be withdrawn, for example, from location under the mining laws, or entry under the homestead laws

47. Q & D: Power to Withdraw • What was the problem presented by the Oil Placer Act? • What is the scope of executive power approved under Midwest Oil? • To what extent should congressional acquiescence be used to construe executive power? • What is different about a presidential decision to open ANWR (in violation of ANILCA) from the presidential action in Midwest Oil?

48. Q & D: Acquiescence and The Antiquities Act • Is the best argument for the Midwest Oil decision congressional acquiescence? • Consider the Antiquities Act • Allows president to reserve “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [public lands]….” • How broad is the President’s authority here? • Note that FLPMA repealed virtually every withdrawal power granted the president over the years, including the implied power of Midwest Oil, with one notable exception – the Antiquities Act

49. The Decision to Retain the “Public Domain” • TGA of 1934 • “In order to promote the highest and best use of the public lands pending its final disposition, the Secretary of the Interior is authorized … to establish grazing districts….” • FLPMA of 1976 • Establishes general policy that the “public lands be retained in Federal ownership…”

50. Public Landshttp://www.colorado.edu/geography/projects_research/range/brief4_history.html