Natural Resources Outline

Introduction

BACKGROUND – WHAT IS NATURE?

There is no place on Earth that is not impacted by human civilization. Cf. Kareiva (“The wilderness ideal presupposes that there are parts of the world untouched by humankind, but today it is impossible to find a place on Earth that is unmarked by human activity.”).

So what is nature, if nothing is “pristine” or “untouched?” Cronon: “Nature” is a social construct. The term itself is contested terrain. We must do more than argue for the preservation of nature; we must translate our (culturally-defined) concept of nature into terms that other cultural grounds can understand.

Cf. Kareiva (“Beneath the invocations of the spiritual and the transcendental value of untrammeled nature is an argument for using landscapes for some things and not others; hiking trails rather than roads; science stations rather than logging operations; and hotels for ecotourists instead of homes. By removing long-established human species . . . removing unwanted species while supporting desirable species . . . and imposing fire management . . . we create parks that are no less human constructions than Disneyland.”).

If nothing is inherently “natural,” resource decisions lose their moral valence, and become questions of cost-benefit analysis. But, why not simply argue for places of wilderness, places of solitude, and places where non-human life-forms dominate the landscape, on their own terms, without invoking concerns about nature?

PUBLIC CHOICE THEORY

Robert C. Ellickson: “An inefficient regulatory or spending program can be predicted to emerge and endure when its (relatively concentrated) beneficiaries have more influence than the (relatively diffuse) taxpayers and consumers whose interests” it disserves.

Agencies may also pursue their own self-interest at the expense of the public.

TAKINGS CLAUSE

Kelo: Whether a taking is for a “public use” is reviewed on a rational basis standard.

Key precedents for Kelo are from the natural resources domain:

Fallbrook Irrigation Dist.: Exercise of eminent domain for the purpose of constructing a (non-public) irrigation ditch was for a taking for “public use” because it advanced a public purpose in economic development.

Highland Boy Gold Mining Co: Exercise of eminent domain to establish an aerial right-of-way for a bucket line operated by a mining company was a taking for “public use.”

In an inverse condemnation claim, it is necessary first to determine whether the claimant possesses a property interest. Then, the question is whether the property has been taken. A direct physical appropriation or permanent physical invasion (e.g. Loretto) will certainly qualify as a taking. For regulatory takings, the question is whether the regulation goes “too far” (Mahon) in adjusting the burdens and benefits of property ownership, such that “in fairness and justice” (Armstrong) the public, rather than the individual property owner should bear the burden of the deprivation. A regulation that deprives the property owner of all economically valuable use of his property will qualify as a categorical taking (Lucas). In other regulatory takings cases, Penn Central controls: consider (1) the nature of the economic impact; (2) the degree of interference with investment-backed expectations; and (3) the character of the government action.

Two threshold inquiries for regulatory takings: (1) did plaintiff have reasonable, investment-backed expectations; (2) was there a significant decrease in economic value.

HISTORY OF PUBLIC LANDS

Title to public lands obtained from Indians by purchase or conquest,¹ by purchase from European powers or Mexico, or by purchase from private owners under the Weeks Act (as in the case of National Forests in the Eastern U.S.). Today, the federal government owns about 30% of the U.S. The U.S.’s policy has evolved from one of disposal to one of retention (FLPMA definitively established federal policy of presumed retention). The public’s preferred use of public lands has also evolved, with increasing preference for preserving land for recreation, wilderness, and species conservation.

CONSTITUTIONAL AUTHORITY FOR PUBLIC LAND MANAGEMENT

The Property Clause provides that Congress shall have the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The Pollard Court construed this authority narrowly in dicta, suggesting that the clause did not authorize the federal government could to police power authority over the public lands. This view was subsequently rejected. In Kleppe, the Court held that the federal government has plenary police authority over the public lands, and can reserve such land indefinitely. Per Kleppe, federal authority extends to the protection of wildlife on federal lands, and regulation of lands adjoining public lands if it serves the purpose of protecting public lands (cf. Camfield).

The Enclave Clause provides that Congress shall have the authority “to exercise exclusive legislation in all cases whatsoever . . . over all places purchased, by the consent of the legislature of the state in which the same may be, for the erection of . . . needful buildings.” Kleppe noted that this clause has been construed broadly to permit acquisition of jurisdiction for any legitimate governmental purpose.

Kleppe indicates that absent a State’s consent or cession of public land to the federal government (per the Enclave Clause), a State retains jurisdiction over federal lands within its territory; however, these laws may be preempted by conflicting federal laws, adopted pursuant to the Property Clause or other constitutional authority.

EQUAL FOOTING DOCTRINE

In Pollard, the Court held that the equal footing doctrine – which requires that new states be admitted into the Union on an equal footing with the original States – is a constitutional imperative. It further concluded that this doctrine prevented the U.S. from granting prior to...

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