Working Paper 93-11, August 17, 1993(1)
By Larry MacDonnell
Director, Natural Resources Law Center
(1) This paper is an edited transcript of a talk given by Larry MacDonnell for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: firstname.lastname@example.org.
© 1993. Conflict Resolution Consortium. Do not reprint without permission.
As I prepared to speak here, I thought about much of the work that I'm involved in. My background is in the natural resources area--natural resource allocation decision making, especially as it relates to water resources. So I come at things with that perspective.
We have made a lot of very fundamental decisions in this country about rights that individuals have concerning the use of land and natural resources, including water. Those decisions have been based on a set of ideas about what would be best for society. In particular, we have created an assortment of property interests in resources. These property interests are the source of a great deal of conflict in the natural resources arena.
Historically, in the United States, resource allocation decisions were based on the belief that individual ownership of resources was the best way to gain the societal benefits that we wanted from those resources. These benefits revolved primarily around economic development. Consequently, we carved land areas into relatively small pieces that had little to do with many of today's environmental concerns. But they did have a lot to do with other values we were emphasizing--economic development being first and foremost, along with other more abstract values such as individual interests and even liberty, in some people's perspectives.
Now we are struggling with the long-term effects of this age-old policy. The decisions we have made over the last several hundred years to carve up our lands without regard to what we now recognize to be very key dimensions of those lands--for instance, habitat preservation or ecosystem dynamics--are causing considerable conflict. Out here in the West, we can see this dispute in its full glory because there is no place that this issue gets fought more intensely than here.
Some of us now recognize that it may have been a fundamental mistake to give to individuals the belief that they have some sort of exclusive domain over a small chunk of the earth. But many others disagree. I don't think many people in this country would take back the decision to create private property. It remains a fundamental American value.
Now we are trying to come to grips with what it means to be the holder of private property. This is at the heart of many environmental conflicts today. What is the real meaning of this thing called a "property right?" There are those who look at the idea of "property rights" in a very 19th-century sense: that these are in fact the exclusive domain of the holders of those rights. The traditional notion of property is that the one holding the property has an exclusive right to the enjoyment of that property, and that they can exclude others. You are familiar with that approach in the homes that you own. You take for granted the idea that the piece of property on which your house sits is your little domain. It is something that you can put a fence around, you can exclude the world from it--you have that right. That is something you do not question. In addition, most of you take for granted that the benefits from the use of that property are yours and yours alone to enjoy. That, too, is something that we assume. You have the right to build a house on that property if you want, or to do whatever it is you would like to do with it, because you own the property. You probably also assume that you should be free to transfer that property to another in what ever manner you choose: sell it to another, give it to another, lease it to another. This also is considered to be a right that comes with property ownership.
Having made decisions to carve up land and the resources on that land and, particularly here in the West, the water resources, into little units called "property," we now face the problem that such divisions have neglected some very important environmental values that are being increasingly recognized. These are probably most easily expressed in the idea of ecosystems. We now understand that the health and diversity of species depend on functional habitats and that those species interact within those habitats to create an ecosystem. Damaging or destroying one part of a habitat will have effects that spread widely throughout the ecosystem. Out here in the West we probably appreciate that more than anywhere else--because we value our natural environment so much. We don't take our environment for granted--it's not hidden in a canopy of trees, as it is in the East. Since we can easily see our environment here in the West, we are more sensitive to it. At the same time, it is a more sensitive environment, and we see the effects of what we do more rapidly. Our abuses are not as easily disguised here; they don't disappear into that canopy of trees as they do in the East.
So today we are in a situation where people have a lot of well-intentioned, well-premised, well-meant expectations about their rights as owners of a particular piece of property (these may be land, water, and/or mineral resources), which are coming head-on against a much broader set of environmental values regarding ecosystem and habitat preservation, endangered species protection, and the like.
The nature of environmental conflict has changed since the early 1970s, when I first got involved in these issues. Then you were either "for" the environment or you were "against" it. You believed that the environment was a good thing and you were going to protect it and save it, or you were a corporate polluter that could care less. Most of the conflicts of that day were cast in those terms, and it was often assumed that conflicts could not be resolved because the values were so fundamentally different. A lot of the environmental dispute resolution literature seems to focus on this problem of irreconcilable values over the "goodness" or importance of the environment.
My sense of the problem, however, is different. Over the last 30 years our values have changed considerably. Most people now have a much greater understanding of the importance of environmental values. Today, even George Bush says he is an environmentalist. We no longer line up on one side of an "environmental line" or another--things are much more complex.
Now, particularly here in the West, the critical questions are: To what degree can you affect someone's property interests in the pursuit of environmental values? To what degree can you intrude on my expectations as a holder and owner of a property right to achieve other agreed-upon benefits for society?
One of the hottest growth areas for lawyers today is litigation concerning Fifth Amendment "taking" arguments. The Fifth Amendment of the U.S. Constitution prohibits the federal government from taking private property without payment of just compensation. Reasonable government regulation of private property doesn't constitute such a taking under the Constitution. But there has been an enormous amount of litigation in this area in recent years testing the limits of the government regulation. The federal court of claims has been finding such taking by government action in some cases and are awarding rather substantial claims.
The endangered species question is unique in some ways, yet at the same time, it has clarified this issue more than any other single environmental issue has. On one hand, we have made judgments, expressed through law, that it is in our interest as a society to provide protection to species which are approaching extinction. We have created very strong strictures, as a matter of law, against governmental action that would further jeopardize species that are on the threatened or endangered-species lists. Further, in the Endangered Species Act, we have even set out limitations on private actions. Each one of us is prohibited by the terms of the Endangered Species Act from actions that would have the effect of killing, harming, or even taking the habitat that could cause the death of or the harm to a protected species. This is a unique law--I know of nothing else that is of this nature in our legal system.
This conflict truly has all the elements of an intractable conflict. On the one hand, we are expressing, as a matter of societal interest, that we cannot tolerate the extinction of these species, while on the other hand, we are declaring to private individuals that they cannot use their land as they see fit. In Texas, for instance, if you own land on which you want to cut trees, you can be told, "Well, I'm sorry, but the red cockaded woodpecker uses those trees, so even if they are on your private land, and you need to cut those trees to maintain your own economic livelihood, you can't do that because that is the habitat for this endangered species."
This is an issue that is before us today in our society. You are familiar, of course, with the conflict over the spotted owl where it is more a public lands issue--it is not so much a matter of private property rights. But private rights are affected, too, by the ESA.
The work that John and Curt2 are involved is about water resources. There we see a similar type of thing: One person might say, "I acquired water rights to irrigate my land; I obtained those water rights under state law. When those rights were given to me, I was told I had a property interest in the use of this water." Now John Hamill comes along, for example, and says, "But that ditch has a prior claim to that water--a fish needs that water for its continued existence." And the water user says, "That's not my responsibility. I've got a private property right to the use of this water resource. How can you come to me now and say that it is somehow my obligation to give up or limit or impair my long-based right to use that water in order to protect some species about which I hardly know and certainly have very little interest?" This has all the ingredients of a very, very serious kind of conflict. Nobody is going to be very interested in giving up a benefit that they hold in a situation like that. You can't just walk up to someone and say, "Give me some of your property, it would be good for society for you to do that." Not in this culture. Our culture values individual freedom and private property very highly. We wouldn't be very happy about that sort of request.
So, looking at this from a legal perspective, we are now trying to understand the nature of the property right that individuals have, in fact, been given. That is the most critical question. Considering the question of water rights--does a "property right" in the case of water assure the holder some fixed quantity of water that is immune from any encroachment?
Going back to the analogy with a private house, although I own that house and that land, I'm very accustomed to the idea that I can't build anything on that land that I want. It has been clear since the 1920s, at least, that governments have the right to zone land, which limits my ability to develop and use land in any way I wish. Landowners now understand and accept that. I also know, as a matter of nuisance law, that I can't use my property in any way that I like if my use will cause harm to other property interests or other individuals. Property owners understand that too, and they accept it.
What I think we are doing now is asking questions about other kinds of limitations on property interests that extend to and include protection of public values. These values don't necessarily bring direct benefits to an individual. Also, they aren't recognized as clear exercises of the police power (as zoning is) and aren't based on the need to protect your fellow neighbor's property, or health, or well-being, but extend to public values that are not necessarily as well-established, such as ecosystem values.
People are trying to emphasize the importance of viewing resource management issues in a broad way as one way to work around this problem. So we are beginning, on public lands, for example, to talk in terms of ecosystem management. But that's not enough. Habitats don't end at private property lines. We have to learn how to integrate private property within the public property of the West to truly have effective ecosystem management.
Similarly, in the water resources area, we are thinking and talking a great deal more in terms of watersheds. Here it helps us to search for solutions that may be more creative than the more immediate solution that one might look to. As John has done in his program, it helps to look quite broadly within an entire watershed at a whole set of options. This is complicated.
My sense is that the conflicts in this area are not amenable to a quick fix. There is no immediate change that is going happen here. There is no single answer. What is going on here is a process of evolution in the nature of a property right. People are beginning to understand that there may be good reasons to alter their image of property--that there are different notions of what the property interest is that they hold.
On the other hand, society is struggling to determine what are reasonably-accepted intrusions into people's expectations about their rights on the use of property. How far can we go? We will have continued litigation on this--but we won't resolve it through litigation.
If you look back at property interests, for example, in the water area, back long ago we used to have something called the "natural flow doctrine" in riparian water law. That meant that the flow of water in a stream could not be impaired in any way. That was the definition of riparian water law. Those who benefitted under that definition of riparian water law, of course, did not want to see that definition of their property interest in water altered. But it did change.
It changed when we were no longer a country in which navigation and free-flowing streams were the highest value of water. We became an industrial country in which mills and water power became important. It then became necessary to control water to some degree in order to have these benefits. So we went to what was called "a reasonable use doctrine." This is one example of how the idea of property, the definition of property, has changed over time. Those changes were economically driven--they were made to meet societal needs. The question today is, do we want to alter the definition of property to meet societal values that are not driven by economics? That is clearly what we are talking about here.
These conflicts today have to do with education. They have to do with getting people to begin to understand the broader world in which they live, where they begin to see outside their narrow property boundaries. They must begin to see that their property is part of a system; their water is part of a system. And, hopefully, they will find that there are some benefits to this broader view that will replace the benefits they lose through the older view.
The transition will be a process implemented through the work of people like those in the Bureau of Reclamation. The Bureau, for instance, is starting to operate their water storage facilities in a different way than they used to in order to provide increased environmental benefits. So far, the Bureau has been able to provide deliveries without affecting any one's property or contract rights. But that situation is changing. California is faced with a very difficult decision in that respect. The Sacramento/San Joaquin Delta, the area that feeds into San Francisco Bay, has suffered enormous problems in water quality and fish habitat over the years. These problems have become so severe that the state is considering reducing the amount of water that agricultural and urban water users may take from the Delta. The State Water Resource Control Board issued an order that would have, in fact, reduced the historical diversion right of major water users in this part of California. This reallocation decision has been put on hold for now, but is likely to occur at some point. Is such an order a taking of the water users' property interest? Well, we'll see if litigation arises on that question. I don't think it is. I think you measure the property in a water right, not by quantity of water, but by benefits attained from that water. As long as you can generate equivalent benefits from the available resource, and there is a sound public purpose in reducing the quantity that you may have, that will sustain the Constitutional challenges. But it will be an evolutionary process. What John and Curt are doing are the hard, front-line work necessary to make that change in values possible.
2 John Hamill and Curt Brown were the other two panel members at this session. Their presentations are available as Working Papers 93-12 and 93-13.