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A private property duty of stewardship: changing our land ethic.

I. Introduction

The king is dead. Feudalism is dead. Despite their deaths they do not seem well buried. Some hear the cry of their ghosts roaming the land, spreading their message of fear. They trumpet that the safest haven against the tyranny of the king is private property. It provides stability, fulfills expectations, assures fair treatment, and safeguards liberty. Do not let him have a slender hair of your rights, lest the king rip great handsful from you. Do not listen to the distant drummer who beats out a tune of a different tyranny for it is false prophecy.

The tyranny of millions of individual people, making small, insular decisions, for narrow, selfish purposes threatens us, sounds the distant drummer. The paradigm of "frontier economics"'(1) and the tyranny of the amalgam of many small decisions must be buried with the king. It is no less oppressive and arbitrary to have one's fate in the hands of the tyrannizing masses than in the despotic king. It is our very survival that is at risk. It is a time for systemic change lest we be shortly interred with the king. That is the message of the distant drummer.

Until recently humans, the dominant species on the planet, have battled the natural environment to eke out a survival, or a modicum of quality living. Many still do. As our numbers have grown, as our technologies have evolved, the balance of power has shifted. No longer do humans merely adapt to the proclivities of nature, they now alter them.(2) Concern has shifted from what mother nature will do to us, to what we will do to her. Basic planetary systems are being altered. The earth is warming and the climate is changing due to a build up of carbon dioxide in the atmosphere. The warming is not yet positively proven, but highly probable; the impacts are speculative, but probably significant; and the public concern is very real, and it should be.'(3)

In looking at the big picture it does not matter that the small group of scientists who continue to resist global warming as a phenomenon may be right, or that the impacts may not be as dire as prophesied. The important fact remains that humans, long involved in changing local environments, are now altering the planetary environment. If not global warming, then ozone depletion, increased desertification, loss of biodiversity, acidification of rainfall, can they all be the songs of a false drummer? If not, then our survival may be at stake.

The privileges of private property won in recent centuries have in significant measure created the problem, but they should not be surrendered unnecessarily. They have in fact been instruments for enhancing the quality of life. The quest to protect the privileges of private property against all intruders regardless of the price or need, however, is an unholy one. The human community's interest in survival must be the privileged right. The natural systems upon which we as a community rely for survival must be protected, and if private property rights must be sacrificed to achieve that protection, so be it. The yuppie must join the king in the mausoleum.

This Article will focus on recasting the rights and the responsibilities of private property in order to attain a balance between the rights of private property and the duties that accompany the ownership of land. The purpose of these rights and duties is to assure the right of the community to survive. Section II elaborates on the nature of the right of survival. Sections III and IV describe the imbalance that has arisen in the rights and duties equation pertaining to land ownership and discuss the reasons for the existing imbalance. Section V proposes that a duty of stewardship be created in the law to redress the imbalance and to facilitate and enforce the evaluation of a land stewardship ethic. Section VI attempts to provide a theoretical base and justification for stewardship, and finally, Section VII explains that the duty of stewardship will not deprive private property of its essential benefits and protections.

II. Basic Right to Survive

There is no more fundamental instinct than to survive; the right to live is the right from which all other rights spring. All states have the paramount duty to guarantee this right.(4) Yet, one is justified in taking the life of another in self-defense, many states permit the death penalty as punishment for the perpetrator of heinous crimes, and states regularly send their young to die on battlefields in defense of the states' interests. All rights are limited, even an individual's right to survive.

Rights are not single-faceted. Since humans live in states, families and other social arrangements, the existence of rights for individuals within the group must give rise to duties. No individual can have a right unless the other members of the group have a duty to respect that right. At this point in our history we are much less enthusiastic about our duties. Many trumpet their right to a jury trial, but few submit without coercion to serving as a juror.(5) This sort of tepid response to duty unfairly limits the rights of other members of the group. Most of us will concede, however, that generally we owe our fellow citizens the duty not to take or threaten their ability to survive. Certainly it can be said with equal fervor that we have a responsibility to respect the lives of our fellow citizens' children and grandchildren, and even their great-grandchildren. This attitude emanates from some community-based moral or ethic inherent in humans that individual rights, though important, must submit to the rights of the social group and its posterity. Aldo Leopold said it best: "[A]n ethic is a limitation on freedom of action in the struggle for existence."(6)

If there is a community-based ethic protecting survival, it must transcend this time and this generation. Essential to survival is the health of the planet which provides the sustenance for life. One writer states that each generation has a "deep moral obligation" to conserve the planet for future generations.(7) Others speak of sustainability or sustainable development, meaning that each generation can seek to maximize the quality of their lives, so long as in the process they do not deprive future generations of similar opportunities.(8) Individual rights and current generational rights must be tempered by the duty to sustain life-support systems and ecological processes so that survival, with a reasonable degree of quality, is retained over time.(9)

Sustainability is not foreign to our culture. The concept of sustainability is intrinsic in the current budget agreement between the President and the Congress. Under the agreement, new spending proposals must be accompanied by an identification of the sources of revenue to pay for the proposal.(10) The agreement seeks to bring balance to the spending-and-revenues equation in order to halt the worsening budget deficit. The deficit is incurred at the expense of future generations, who will have to pay for it. These generations will have no choice in incurring the deficit, and it can be viewed as a form of taxation without representation. The planet and its natural systems provide the base map onto which all other systems must be overlaid, including that of the economic system. It must be protected from inordinate deterioration through abuse by the current generation, so that future generations will not have to pay unfairly.

To assure survival, the air, the water, and the land must be protected from undue deterioration. If survival is accepted as paramount and the stem of all other rights, retaining healthy air, water, and land tempers all other rights and is imperative, not a matter of choice. There is probably little disagreement about the notion that the planet is finite and that it provides us with the only life support system we know to exist. If the right of survival is to be honored, this finite resource upon which we rely must be conserved. There is surely a consensus that the right of survival crosses time boundaries, and that given that this right exists, duties must exist as well. This may end the consensus. It is much easier to enjoy the rights to nature's bounty than to constrain our claims by honoring our responsibilities to the community at large, and to future generations.

The prevailing paradigm that economic efficiency is paramount complicates the matter of being sensitive to the needs of generations to come. If our responsibility to future generations can be satisfied by maximizing consumption, while passing the fruits of our knowledge, institutions, technology and capital improvements along in exchange for our consumptive excesses, we are doing very well."(11) This approach, however, ignores the fundamental reality of the earth's finite nature by relying on science and technological developments to fill the resource niches created by our consumption habits. Survival is a lot to bet on unknown and perhaps nonexistent technological solutions.

Imperfect knowledge is a critical element to assess in the quest for survival. We do not know that global warming exists, nor do we have any but the vaguest notions of its costs. We do not know the long-term impacts of ozone depletion in the upper atmosphere, or ozone pollution at ground level. We have only minimal understanding of the implications of cutting huge segments of tropical forests, and know only slightly more about cutting temperate forests. Despite this knowledge vacuum, we move full-bore ahead. It is our destiny in a market economy.

Some question the wisdom of our approach. One writer warns that because knowledge is so incomplete, reason must tag along behind ethical judgment.(12) Another contends that economic theory disregards moral education and leadership(13) in making decisions about resource allocation. Few seem to have listened to these cautions concerning our current course of action.

III. Legal Analysis to Date

The Fifth Amendment to the U.S. Constitution provides that a person cannot be deprived of property without due process of law. In addition, it states that private property cannot be taken for public use without paying just compensation.(14) It is clear that these limitations on government action are intended to protect private property rights from unfair encroachment.(15) There is no evidence, however, that the protection of private property was intended as a mechanism to limit the government's ability to promote the public good.(16) It is generally clear that, as a practical matter, an unrelenting tension exists between the protection of an individual's private property and the fostering of community rights.

A. Constitutional Interpretation

Courts deal with this tension by using a simple-sounding legal rule. The government can regulate as long as (1) it does so in order to promote the public health, safety or welfare; (2) it does not create an unfair burden on the private property owner; and (3) it stops short of creating a regulatory taking.(17) As to a regulatory taking, it occurs when the government physically encroaches on the property, or it unreasonably diminishes the property's value, provided the diminution is combined with other unexplained factors,(18) or it deprives the owner of all reasonable investment-backed expectations for the property."(19) The test is not simple in its application, but most of the nuances of this complex business is left to others who have written on this subject.(20)

Some things need to be said, however, about regulatory takings. First, the test applied is basically an economic one.(21) It allows the government to reduce the private property owner's freedom in order to achieve protection of the community's rights so long as the economic encroachment on the owner's freedom does not cross over a dimly lit economic line. Land, the particular type of property of concern in this Article, provides the sustenance for our survival. But, under the takings test, it is treated solely as an economic commodity, not as an essential natural resource.(22) Making economic criteria the device for determining the line between private property rights and community survival rights is fundamentally flawed. It assumes that the base map in decisionmaking is the economy and that the inherent land constraints are overlays on to this economic base map. Systemic change cannot occur until this error is rectified. The base map and ultimate limiting force is the land and its natural systems, not the economic beliefs of people at this period in time.

Second, the Constitution does not define what property fits beneath its protective umbrella.(23) Time has shown that all property is not created equal under the Constitution. The courts generally find that property rights are derived from state legislation or common law.(24) Other potential property rights are not constitutionally recognized until, and if, the state legislature creates them. The point is that constitutionally protected property has no fixed, pre-ordained definition and is therefore open to change.(25) It would seem equally appropriate that the extent of protection afforded property might vary depending on the countervailing interest of the community. In so far as land is important for survival interests, the community's interest must be elevated over the constitutional protection of private property interests. Conversely, community rights must be no more invasive of private property's essential interests than necessary unless compensation of some type is made.

B. Shortcomings of Economics-Based Analysis

Several criticisms can be leveled at economics-based analysis. The just compensation requirement has always been interpreted to mean economic compensation. The goal of just compensation is presumably to achieve a fair trade for the taken property. It should be recognized that the use of economic compensation does not always fulfill that end. When people are dislodged from their homes and their community for some public project in exchange for the payment of fair market value for their land and buildings, it is hardly a fair exchange. The loss of place, position, status, roots, and community solidarity is not satisfied by the payment of money.(26) Thus, the government is free to ignore the noneconomic property that it takes with impunity. Though easy to apply, financial compensation is not a panacea. The economic yardstick has served neither the community nor the individual in some cases.

Even if economic value is the best yardstick available, it is imperfect and often too expensive to be viable.(27) For example, if ecologically important lands must be preserved for survival purposes, the government has the power to condemn the lands under eminent domain. However, if these lands are substantial both in number and in fair market value, the community, because of limited understanding of what is at stake and affordability, may not be willing to condemn them outright and. pay just compensation. Some alternative mechanism must be found to assure protection of the land and preservation of the essential components of private property. There is no dearth of proposals for change.

C. Proposals for Change

"Because it is mine" does not establish an essential component of private property, nor does rhetorical reference to "my constitutional rights." Reference to eighteenth century fears of tyrannical government seem ill-placed in a democracy now two hundred years old and on a planet where democracy is spreading like wildfire. It seems a time to enter a dialogue to draw more clearly the line between the community's survival interest and the individual's property interests. The piecemeal chipping away at private property interests by state and local governments through layer upon layer of land use regulations to protect the environment seems only to have antagonized individuals into strong anti-government feelings.

Some writers suggest that the public trust doctrine, originally confined to navigable waterways for purposes of facilitating navigation, commerce and fishing, can be expanded in scope and purpose.(28) Some courts have done just that. The New Jersey Supreme Court enlarged the purposes of the public trust to include recreational activities and extended its scope to the dry sand areas above the mean high tide.(29) The California Supreme Court expanded the doctrine to inland waters and its purposes to recreational and ecological uses.(30) The United States Supreme Court, noting that tidelands are ecologically different, upheld a public trust claim because the property owners should not have had expectations concerning submerged tidelands, especially since the state had indicated a claim to them.(31) But some claim that the public trust doctrine is fundamentally flawed, and therefore the wrong approach.(32)

Another author proposes a substantive due process analysis based on the "dictates of justice and fairness" as a tactic for resolving the line drawing issue in property rights.(33) He suggests that such an analysis would add more flexibility than the takings clause by allowing government regulation for environmental reasons without requiring that just compensation be paid.(34) He points out that a substantive due process path must be preceded by a process identifying the value judgment used, clear analysis, candid recognition of inconsistent precedent and avoidance of the tyranny of labels.(35)

Another author asserts that the basic economic premise underlying decisions regarding land are wrong. Because land is different from other forms of economic property in that it is in fact essential for survival, a natural-use theory should be used.(36) The theory recognizes the "ecologically imperative" character of some lands making them necessary for survival, and therefore justifying a decisionmaking conclusion that favors the natural resource interest of the land over its economic commodity value.(37)

I have previously proposed a comprehensive state-wide land planning system that separates land into three distinct categories for regulatory purposes.(38) Once lands are identified and mapped by category, owner expectations will be channeled by the classification. An owner of an "ecologically imperative" parcel will know that the natural resource value of the land will receive preference over its economic commodity value. Similarly, owners of economic-primacy" lands will quickly come to understand that their economic value will be emphasized.(39)

The methods of attack cited above, and others formulated in recent years, seek to redress the imbalance between private property rights and community rights. The solution proposed here insists that we view the playing field as having a significantly different slope.

IV. The Tilt Toward Private Property Rights

The emphasis on individual property rights in the law received a major thrust in England during the attempt to throw off the shackles of feudalism.(40) The importance of private property was further enhanced by the fact that the regime of private property tended to encourage owners to be thrifty with their possessions; however, since World War II, more emphasis has been placed on the property rights of the individual.(41) Concern about the "I" has temporarily, at least, won primacy over the "We."(42)

The shift in emphasis to the individual rights side of the social equation resulted primarily from the economic efficiency paradigm.(43) The unidimensional attitude derived from neoclassical economics insists that the sole motivation for individual actions is to maximize pleasure and to minimize pain. It gave rise to the policy of accentuating the "bottom line" of short-term profit maximization. To achieve the goal of the paradigm each person must strive to give the least to get the most.(44) It is not contended here that maximizing pleasure or profits has ever been an achieved goal, or is ever, under close scrutiny, truly the lone goal of normative actors. The gurus of the paradigm have found that their analysis leads them to extraordinary places. For example, one writer's conclusion is that gifts are sales below market price, and another that children are durable goods.(45) It is not surprising that under this paradigm, land, which is essential for our survival, is seen solely as an economic commodity.

Despite economic efficiency's lack of total success in the marketplace of ideas, it has had a profound impact on our behavior. It has lead us to demand and expect fewer taxes with no reduction in services, to insist on enjoying the benefits of modern chemicals but to protest their disposal in our neighborhoods, and to cause us to rail against the ineptness and corruption of politics but to ignore the ballot box on election day.

Although economic efficiency has exerted a strong influence on society, it is not alone in motivating individual action, because forces other than pleasure also influence our conduct. Ethical values and moral causes, sometimes causing us much pain, often motivate our behavior.(46) The concept of civic virtue goes back at least to the time of Aristotle,(47) and most individuals are unable to function without deep links to the community, which extends a shared commonality to its individual members.(48) The greatest freedom is not achieved through sheer irresponsibility.(49) Yet, perhaps through urbanization and certainly influenced by the economic paradigm discussed above, individuals have won what is arguably excessive autonomy.(50) The resulting cost is weakened social bonds of family and community, and the decline of religion and traditional values fostered by these institutions.(51) More important here, it has led to the disassociation of humans from the environment on which they rely for survival. The emphasis on a purely economic cost-benefit analysis as the driving force behind policy formulation fails to recognize the value of community(52) and environment. One can see a manifestation of this shortcoming in the divergence of views between economists and ecologists concerning the developments of the 1980's. Economists glow about this time as an era of unprecedented growth. Ecologists lament the period as one in which all major environmental indicators worsened, leaving both the United States and the planet considerably worse off.(53)

The solution to the imbalance between rights and duties in regard to land policy does not lie in an abolition of private property rights through some type of collectivism. It seems equally apparent, however, that some basic change is necessary. The community's interest in land for survival and even quality of life interests, must be expanded, and conversely, there must be a contraction of the private property rights of the individual. Where the new balance should be struck depends on drawing a more acceptable line, one that accomplishes the goals of the community without detracting from the fundamental nature of private property.

V. Duty of Stewardship

Land is fundamentally different from other forms of property. Because any parcel of land is part of a network of natural systems extending beyond the boundaries described in the deed, it attains an importance superior to any individual landowner or to any period in time. Land is essential to our right of survival. Although a legally recognized landowner has extensive rights to use, to exclude and to convey the land to others, those rights should be limited by a duty of land stewardship.

The duty of stewardship requires that the owner use and maintain the land in a manner that will not interfere with any significant natural resource value that it may contain. One writer defines stewardship as management of a resource that uses no more of it than is necessary, does not allow damage to go unattended, exercises "proper" dominion over it, and looks out for others' needs.(54) The scope of the stewardship duty should be defined by the appropriate legislature after generous input from members of the scientific community and the public. It should be realized that knowledge concerning the importance of land, or any parcel of it, is poorly understood at this time and that any criterion or land classification system used may have to be thoughtfully recast as better information becomes available.

Further, and as an alternative to legislation, the seriousness of the threat to the integrity of our living environment justifies courts, when making common law decisions or interpreting legislation, to create the duty of stewardship if the legislature fails to do so. A common law basis for stewardship can be found in the existing duty to prevent waste. A life tenant has an obligation under the common law to husband the land so as to do no harm to the corpus of it. It must be passed on to future owners in the same approximate condition as it was received.(55) Though the concept of waste is centered on the idea of protecting the economic value of the property, as society matures beyond this narrow economic paradigm, principles like waste must be centered differently as well.

Stewardship can also be related to the concept of nuisance. An illegal nuisance exists where one uses land in a manner that unreasonably and substantially interferes with others. Using land in a fashion that threatens natural systems or community survival rights substantially and unreasonably interferes with the rights of other members of the community. Though not formally ordained by the courts in nuisance cases, the duty of stewardship is an intrinsic and essential part of the prevention of a nuisance; that is, the protection of a landowner's neighbors from substantial and unreasonable interference.

It is comforting for those trained in the law to tie any new idea or perspective neatly to the past or to existing rules. Thus, equating the duty of stewardship to the duty to prevent waste and the law of nuisance is a bow to that important tradition. But stewardship means more. It demands that we abandon the strict economic approach to land-use decisionmaking that entails broad privileges and few obligations. Stewardship requires a respect for the relationship between humans and the land that receives little notice in our law.(36) As stated by Leopold, "[o]bligations have no meaning without conscience, and the problem we face is the extension of the social conscience from people to land."(57) In reality stewardship does not call for more land acquisition by governments to preserve ecosystems, but for a change of attitude about everyone's backyard. The job of intergenerational conservation is too big, too complex, and too dispersed to be left to governments.(56) It must emanate from a conservation ethic among private landowners, and be facilitated and backed up by the imposition of a legal duty of stewardship where someone falters.

This proposal argues for alterations in existing property rights. Depriving property rights of their substance has not deterred us in the past when the social agenda demanded change.(56) Land is owned subject to the implied servitude of the police power, and the public's health, safety and welfare needs change over time.(60) There is no justifiable reason for protecting the power of a landowner to waste and to destroy, when that conduct may harm the community's or the planet's interest.(61)

Law earns its keep only through its successful operation in various real world situations.(62) Law is based upon imperfect knowledge, is not intrinsically good, and cannot truly be used objectively and disinterestedly.(63) It must draw its strength from its usefulness in today's world and from the environment in which it currently exists. Viewed in the light of these limitations, the law must draw from whatever sources or disciplines that are available to it in order to formulate rules that expedite human survival. A duty of stewardship is necessary for survival and it must find its roots wherever it can.

VI. Theoretical Basis for Stewardship

Creating a duty of stewardship is more than redrafting the line between private property and public property. Redrawing that line has been rationalized and advocated by others through the use of the public trust doctrine,(64) the creation of a planetary trust,(65) and broadening public property rights.(66) Each theory calls for an incremental shift of the public-private property line to bring into balance the rights of the individual owner and the environmental rights of the community. Conversely, the change advocated here through stewardship is systemic in nature. It calls for a re-conceptualizing of private property when that property is land and has special natural value beyond the deed's described boundaries. There are numerous reasons for advocating systemic change.

A. Land Is Different from Other Property

Individual landowners must learn to perceive their right to use the land as directly tied to the duty not to abuse it because land is different from other types of property. To the extent that land retains its natural characteristics, it is not the product of the landowner's labor, cultivation, or discovery. No innate principle of justice ordains that the landowner has the right to consume or abuse its natural resources. To the extent that rights exist, they are the product of a cultural creation and a legal conclusion,(67) not some immutable rule for all times. The rules can and should change to adapt to new situations.

Whether a person purchases a small urban homesite or a large pristine forest, the land is already in use. The homesite is used as a human abode, and the forest ecosystem is used by plants, animals, and the surrounding human community. If the homesite owner wants to change the use of the parcel or to modify it in some significant way, the owner must obtain the approval of the government, lest he make an unwise change in the land's use that negatively affects the community. If the forest owner wants to cut a tree, divert the stream, or build a subdivision on the land, that is a change in use, and from the community rights perspective, it may not be a wise change.(68) At some level of change in use, the forest site should be overseen by the duty of stewardship, and monitored by the legal system to reduce unwise decisions.

We owe a duty of responsibility to ourselves, to our community, to the members of other communities on the planet, and to the generations to follow. The rights of communities have not been carefully protected by our laws.(69) Yet, in recent California water law cases, a community-based sense of justice has emerged that steers away from the classical focus on individual autonomy.(70) Acute and chronic water shortages have given rise to a new sense of community that favors a political reallocation of legally established property entitlements.(71) A sense of interdependence due to the limited water resources is acknowledged as critical to their economic, personal and community survival.

Due to the fact that land and its natural systems do not observe national boundaries, a duty of stewardship is essential in satisfying our responsibilities to nations beyond our borders. It is unfair to demand that the poorer communities of the southern hemisphere be more temperate in consuming their land and other natural resources(72) because such a demand would often force them to choose between survival and ecological ethics.(73) It is ludicrous to ask the very poor to put ecological ethics above economic survival interests while resisting the development of a similar ethic in our generally more affluent world.

The natural resources on the planet are finite. We and the generations to come must share these finite resources. Principles of equity dictate that we consume resources with an eye toward protecting the flexibility of choice for future generations.(74) This lays upon the current generation the duty to protect against any loss of future options; specifically, it mandates that biological diversity, nonrenewable natural resources, and cultural resources be conserved.(75) These options are preserved by conserving the land as a natural resource through a land ethic fostered by owner stewardship.

The need for a change in land values is systemic in nature because the current method of making land use decisions is dominated by an inappropriate economic paradigm. The Just Compensation clause of the Fifth Amendment establishes that money and land are interchangeable. In essence the clause fosters the goal of economic growth.(76) If one accepts the premise that the planet's natural resources are finite, and that many are nonrenewable, one could contend that the long-term prognosis for an economic growth paradigm as presently envisioned is ecologically bankrupt. Gross domestic product should not be used as the measurement of success. The tenure of a landowner must be evaluated by the conservative management of the land, and not solely by the income it generates or fair market value. As with any systemic change, this will not come easily.

Finally, the times have changed. This country is two hundred years beyond autocratic rule when individuals needed broadly constructed private property rights to protect them from an over-bearing government. That shield need no longer be so severely crafted. It is time to craft more thoughtfully the relationship of rights and obligations of the individual to her community.

B. Inadequacy of Self-Interest as the Motivation for Land


Aldo Leopold noted fifty years ago that enlightened self-interest, exhibited by staying within the law, or donating land for tax advantages, or agreeably selling land to the government for public parks, would not lead to necessary change. Unless there is a social ethic - a land ethic - that defines right and wrong, assigns obligations and calls for sacrifice, we will not come into harmony with our natural environment.(77) A land ethic will not grow from enlightened self-interest. Unless the focus is diverted from pure self-interest and directed in a value-centered fashion, it will be akin to the American love affair with large automobiles. When the price of gas is high, we buy small cars, and when it goes down, the size of the car purchased goes up; the decision is based on short-term self-interest. A value-centered decision based on conserving fuel and other natural resources by buying smaller cars would better serve the community's interest by choosing to stay in harmony with our natural environment.

C. Lessons from Environmentalism and Communitarianism

The task of this journey toward stewardship is twofold: first, to create a social ethic of ecocentrism in which humans are integrated with their natural environment; and second, as perhaps an essential forerunner of the first, to reorder the rights of the individual and the rights of the community regarding land.

Ethics evolve from the premise that individuals are members of "a community of interdependent parts."(78) Though the individual's instincts and the current economic paradigm prompts competition for status in the community, ethics prompts cooperation so that there is a place to compete.(79) The planet provides the natural resources for which to compete, but the finite character of many of them and the intuitive desire to maintain the existence of the human species over time forces us to temper our competitiveness. The new ethic must include a liberal dose of community cooperation and the recognition of the importance of the land and its natural systems to our future existence as a species. It demands that individuals gravitate toward an ecocentrism where community cooperation finds that it can lie down comfortably with our competitive spirit.

The failure of humans to realize their interdependence with the natural world is matched by the failure of many to recognize their connectedness to human communities. Yet evidence of that interdependence is everywhere. If the public utility goes off-line, we cannot heat or feed ourselves; if the gas stations close down, we cannot get to work or to the store; if the banks take an extended holiday, we cannot retrieve our financial resources; or if the police, fire fighters or health care professionals were to strike, chaos would ensue. Beyond these tangible dependencies, some communitarian writers contend that it is difficult to conceive of our own identity without reference to our roles as citizens and participants in a common community life.(80) These writers see the sharing of values as the bedrock of our moral-philosophic discourse.(81) It is contended that injustice arises not from violations of individual rights but from the failure of the community to have shared values.(82) Racism and environmental degradation are evidence of the truth of that contention.

With so much evidence of the need for the ascendancy of community, the modern myth of rugged individualism seems oddly out of place. It would seem that the individual and the community should have equal moral standing, neither being secondary or derivative.(83) The needs of each must be worked out with careful attention to a new balancing of rights and duties. The desire for the human community to survive on this finite planet demands that the excessive autonomy of individual rights cede some territory to the community by assuming a duty of stewardship with regard to land ownership.

Stewardship must be a shared community ethic to be successful. Some individuals left unguided, however, are apt to favor short-term, selfish interests. As religion and custom fade deeper into the cultural background, the civil religion of law must be used as arbiter of correct behavior. The scope of the duty of stewardship must be defined with sensitivity to the legitimate needs of protecting private property rights.

VII. The New Balance

The duty of stewardship must be imposed so that the essential ingredients of private property are preserved to the extent possible. Several ideas underpin the traditional sanctity of private property and retain their vitality at this time: expectations, stability, fairness, and liberty.

A. Expectations

Expectations arise from shared understandings and intuitions.(84) In general, the traditional expectations accompanying land ownership included the relatively unfettered right to use, to dispose, and to exclude others from entering the property without permission.(85) In more specific terms, the degree of individual autonomy intimated by these general expectations probably never existed, but whatever rights existed have been sharply eroded in recent years. Zoning laws, subdivision regulations, public health laws, to name a few, have chipped away at an individual's autonomy over his land.(86) If there is one thing certain about the expectations of land owners during this century, it is that they must continually anticipate, if not necessarily delight in, change.

It is also clear that there is a conflict between an individual's autonomy over land and the community's right to survive and thrive. If one accepts the principle that the community's survival rights are of a higher order, individual autonomy must relent. The predominantly economic interest of the individual must relinquish ground to the demand that the community's ecocentric interests retain their vitality.(87) If the "old image of property"(88), is to be challenged, the new boundaries, the new expectations must be stated clearly. One must seek to minimize the "destabilizing disappointment" of common expectations.(89)

Owners should be able to expect some beneficial use of the land. Beneficial use does not necessarily mean, in all cases, the right to develop the land for economic purposes. Beneficial does not mean that there is a right to obtain any subjectively conceived economic return if that return would be obtained at the expense of the community's rights. To be consistent with current law emanating from the U.S. Supreme Court, the beneficial use must be in some measure economic in nature.(90) The economic benefit may be confined to continuing the current, non-nuisance creating use of the land.

Retaining beneficial use may mean that the owner can maximize economic development and use of the land. It depends on what is a reasonably beneficial use of the property given the community's environmental interest in the land. This meaning of beneficial use injects a duty of stewardship into the equation to temper the broadly-stated rights of individual ownership. More predictability as to expectations can be obtained by adopting a land classification system designating ecologically sensitive lands, lands needing some lesser environmental protection, and those that, given conformance to zoning and other regulations, are appropriate for development.(91) It would avoid, among other things, the contradictory expectations currently abroad in wetlands law, where most courts uphold wetlands legislation but a few find protective measures to be regulatory takings and grant large damage awards to the owners.

B. Stability

When material objects become part of an individual's identity, they are recognized as property and receive protection as legal rights. Along with a person's history, traditions and sometimes activities, property becomes part of an individual's identity.(93) As part of this identity, an individual relies on property to provide stability in life.(94) Another part of a person's identity is the community. The community provides stability and a vehicle for sharing mutual concerns. Although individuals do not always value the same type of property or derive the same benefits from the community, they are likely to rely upon the stability that each offers to them.

If there is to be a shifting of individual property rights to the community's benefit, an important goal must be to prevent destabilization.(95) Property usually has both tangible and intangible aspects. The tangible aspect is predominantly an actual and potential use value; the intangible aspect is that it becomes part of a person's identity. The goal of a new property paradigm is to remove some of the use value - to the extent necessary to protect the community's survival rights - but to retain the identity values. The mechanism used to achieve the goal is to inject a duty of stewardship as part of the concept of property. Stewardship is aimed at protecting the resource value of the land which the owner did not create, but steers far away from that value added by the fruits of the owner's labor. Under any paradigm one should expect greater protection for the product of one's labor than for that which is the product of another's hand.

If the duty of stewardship is as well defined as possible at any point in time through a land classification system as suggested above, or some other system, the changes will not be destabilizing. It is far less destabilizing than the "crap shoot" currently involved in seeking myriad government approvals prior to land development. Perceptions or the expectations of stability will soon conform to the new legal reality of stewardship.

C. Fairness

The Fifth Amendment to the U.S. Constitution provides the prevailing framework for fairness in the property regime. It states that property cannot be physically taken without paying just compensation, and that any "deprivation" must not occur without due process of law. The thrust of these protections is not toward protecting an owner's right to develop land or any other use right, but toward the prevention of governmental interference with property rights in an unfair manner.

It is often suggested that if the government or the community needs to protect certain lands because they have important environmental survival value, the constitutional avenue is to exercise the power of eminent domain and to pay just compensation. Certainly if the community wants rights of permanent access to the land for its citizens, there is no constitutional alternative. One wonders how fair, or politically feasible, it is for the community to condemn more and more privately owned land. A recent newspaper article noted that climate change caused by global warming may cause many of the planet's great natural preserves to lose their importance because their ecosystems will change with the warming.(96) This would undo decades of conservation work, and theoretically force governments to begin new acquisition programs to protect biodiversity. Perhaps a universal paradigm of land stewardship could alleviate the severity of the problem.(97)

One way of achieving fairness is by providing for full public participation in the process of developing criteria that are as specific as possible in order to guide owners and other participants in the market. Extensive participation in the process of formulating the goals and criteria of stewardship should minimize the threat of an overzealous government invading private property rights unnecessarily.

D. Liberty

One of the reasons for the careful expansion of private property rights is the recognition that there is an element of individual liberty in their protection.(98) The liberty function of private property can buffer individuals from exploitation by the government and by other individuals.(99) Private property acknowledges the right of the owner to use the commodity and resource value of land. The use value, which is often identified as the first function of private property, is a supporting pillar of individual liberty.(100)

There are, however, significant limitations on liberty imposed by law and by common sense. In law, unless a fundamental liberty interest is at stake, there is only limited autonomy against state encroachment for good cause in an individual's residence or place of business.(101) For example, a municipality may restrict those living within a residence to a family, and then narrowly define what constitutes a family.(102) Common sense and John Stuart Mill contend that liberty is freedom coupled with responsibility.(103)

The liberty interest provided by private ownership of land must be tempered by the responsibility of land stewardship.

There is no intent to encroach on the individual liberty interest any more than is necessary to protect the community-important, resource value of the land. The duty of stewardship under the above circumstances, however, may curb to some degree the liberty protection provided by private property. In exchange for relinquishing part of the liberty interest, the individual will gain some assurance that a long-term survival interest of the community is being served, and that others will be acting as stewards as well. This will enhance the individual's liberty interest and that of the entire community.

VIII. Conclusion

Evidence of environmental decline is everywhere. After decades of growth, world grain production has fallen by approximately one percent per year since 1984.(104) After decades of growth, the World Bank reports that incomes fell during the 1980's in forty developing countries.(105) If the national economic accounting systems were improved to include the loss of natural capital assets, such as forests, top soil, and clean water, many more countries would have a negative income picture.(106) Soil erodes, deforestation continues, increased desertification thrives and grazing lands decline in quality.(107) The evidence is indisputable.

Environmental problems cut across all classes in a society and affect all creatures on the planet. People in developing countries may be depleting their natural capital assets through deforestation and other activities in order to survive, but the assets are no less depleted because the people have a good reason to do so. Developed countries are burning fossil fuels leading to carbon dioxide emissions and global warming in order to enhance their living conditions, not to achieve some calloused, evil purpose. Yet, the burning of fossil fuels and many other consumptive behaviors still degrade the environment.

Improvement has occurred and environmental sensitivity has spread well beyond the upper-middle class of developed societies, who were originally identified with the cause of environmental protection. Through the approach of "environmental protection," nations have tinkered with their economies to make minor policy adjustments. In some measure the tinkering has worked. As a life-long environmental incrementalist, it is difficult for me to make the wrenching sounds of urgency in public. I make them here out of fear that incrementalism is not enough. Systemic changes must begin with the land, for it is fundamental to the planet and to our notion of private property. To deny that economic considerations are extremely important to people is to ignore reality. As stated earlier, however, the base map of life is not the economy. Our base map is the land and its natural systems; therefore, a change in attitudes toward the land is essential. A duty of stewardship accompanying land ownership is no more far fetched than the private ownership of land by the masses in feudal times, or in some recently disintegrated socialist countries. Stewardship, an integral and positive aspect of land ownership, can help to satisfy the desire of many of us to be contributors to a community effort and to leave a legacy for posterity.

It would be a pity not to heed the warning of a spokesperson for the Green Party in the United Kingdom. She stated: "Our numbers, our silence, our lack of outrage, could mean we end up the only species to have minutely monitored our own extinction. What a measly epitaph that would make: they saw it coming but hadn't the wit to stop it happening."(108) Aldo Leopold in describing April in his beloved Wisconsin noted the impending emergence of a whitlow grass called Draba and observed:

Within a few weeks now Draba, the smallest flower that blows, will sprinkle every sandy place with small blooms. He who hopes for spring with upturned eye never sees so small a thing as Draba. He who despairs of spring with downcast eye steps on it, unknowing. He who searches for spring with his knees in the mud finds it, in abundance.(109)

It is in the mud of the land that we will find our new identity. The future does not belong to the individualists, but to the stewards of the land. (1.) Michael E. Colby, Environmental Management in Development 9 (World Bank Discussion Paper No. 80, 1990). Frontier economics is the term used by economist Kenneth Boulding to describe the paradigm existing until the late 1960's. It views nature as an infinite supplier of physical resources and an infinite sink for the waste products of human development and consumption. (2.) Lester R. Brown, Launching the Environmental Revolution, in State of the World 1992, 174-176 (Linda Starke, ed., 1992). (3.) Christopher Flavin, Slowing Global Warming, in State of the World 1990, 17 (Linda Starke, ed., 1990). (4.) Id. at 13 (quoting Centre For Our Common Future, Background Information on the Hague Declaration, press release, Geneva, undated (conference held March 10-11, 1989)). (5.) Amitai Etzione, A Responsive Society 141 (1991). (6.) Aldo Leopold, A Sand County Almanac 238 (1949). (7.) Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11 Ecology L.Q. 495, 504 (1984). (8.) Brown, supra note 2, at 174. (9.) Weiss, supra note 7, at 508-09. (10.) Budget Enforcement Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388-573 (1990) (codified as amended in scattered sections of 2 U.S.C.). (11.) Weiss, supra note 7, at 532. Weiss contends that limited non-frivolous use of natural resources and the production of some pollution can be off-set by the creation of increased capital, income, and knowledge. Wholesale consumption of natural resources and production of pollution may jeopardize the options available to future generations. Id. at 526. (12.) Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. Colo. L. Rev. 217, 234 (1990). Freyfogle indicates reason "acts on knowledge and is good and solid only to the extent that the knowledge is complete." He goes on to quote Wendall Berry, "[t]he trouble, as in our conscious moments we all know, is that we are terrifyingly ignorant." Id. (13.) Amitai Etzioni, The Moral Dimension: Toward a New Economics 238 (1988). (14.) U.S. Const. amend. V. (15.) James L. Oakes, "Property Rights" in Constitutional Analysis Today, 56 Wash. L. Rev. 583, 614 (1981). (16.) Frank I. Michelman, Property as a Constitutional Right, 38 Wash. & Lee L. Rev. 1097, 1098 (1981). (17.) James P. Karp, An Alternative to the United States Supreme Court's Economic-Based Rationale in Takings Analysis, 2 Vill. Envtl. L.J. 253, 255-56 (1991). (18.) In a recent case, Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), the Court stated that if the government regulation denies the landowner all economicauy beneficial or productive use of the land, a regulatory taking exists. Id. at 2893. In this rare instance, when all economically beneficial or productive use is denied, just compensation is mandated, unless under the state's property or nuisance law the particular use sought by the owner was not an entitlement of land ownership. Id. at 2899-2900. See A Colloquium on Lucas, 23 Envtl. L. 869-932 (1993). (19.) Karp, supra note 17, at 257-58. (20.) For a citation list on this topic see Karp, supra note 17, at 257 n.16. (21.) Karp, supra note 17, at 261-63. (22.) Sadly, Justice Scalia in writing the Lucas opinion affirmed the view of land as an economic commodity, "[F]or what is the land but the profits thereof[?]" Lucas, 112 S. Ct. at 2894 (quoting 1 E. Coke, Institutes, ch. 1, $S 1 (1st Am. Ed. 1812)). (23.) Michelman, supra note 16, at 1099. (24.) Id. at 1101. (25.) Under the Lucas rationale, where owners allege that all economically beneficial or productive use is denied, a state's current definition of property is extremely important for two reasons. First, the determination of the denominator in the deprivation fraction will be critical in deciding whether or not all protected use was taken. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 (1992). For example, if the regulation deprives the owner of use rights X and Y, it is critically important to the outcome to find out whether the state defines the property right as encompassing X and Y alone, or also includes Z. If it includes Z, all protected economic use is not taken away. Second, if all economic use is taken, just compensation will not be due when the owner's deprivation is something not included within the use interests received upon getting title. Id. at 2899-900. (26.) Michelman, supra note 16, at 1112. Michelman suggests that perhaps property rights should be seen as political rights. These rights could not be removed by the government until the owner had the opportunity for full and fair participation in the process. Id. In that way the entire array of private interests can receive consideration. (27.) Id. at 1111. (28.) Joseph L. Sax, Liberating the Public Trust Doctrine from its Historic Shackles, 14 U.C. Davis L. Rev. 185 (1980); Gary D. Myers, Variations on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 Envtl. L. 723 (1989). (29.) Mathews & Van Ness v. Bay Head Improvement Ass'n., 471 A.2d 355 (N.J. 1984). (30.) National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983). (31.) Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988). (32.) See, e.g., Richard Delgado, Our Better Natures: A Revisionist View of Joseph Sax's Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform, 44 Vand. L. Rev. 1209, 1211 (1991). On the most basic level Delgado complains that the wide acceptance of the public trust doctrine in the early 1970's "froze thinking on our relationship to nature." Id. at 1214. He believes that more sweeping and ambitious solutions are needed. Id. at 1212. (33.) Oakes, supra note 15, at 614. (34.) Id. at 625-26. (35.) Id. at 626. (36.) David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 Harv. Envtl. L. Rev. 311, 312 (1988). (37.) Id. at 316. (38.) Karp, supra note 17, at 276-79. The three classes proposed are: ecologically imperative lands that are vital to protecting life support systems; community-critical lands that are necessary to protect the quality of human life; and economic-commodity lands that include the residue of lands appropriate for economic development. Id. (39.) Id. (40.) Eric T. Freyfogle, Context and Accommodation in Modern Property Law, 41 Stan. L. Rev. 1529, 1553 (1989). (41.) Etzioni, supra note 13, at 240. (42.) Id. at 241. (43.) See supra notes 26-27 and accompanying text. (44.) Id. at 249. (45.) Id. (46.) Etzioni, supra note 5, at 7-8. (47.) Id. at 132. (48.) Id. at 139. (49.) Freyfogle, supra note 40, at 1548, (quoting E.B. White, One Man's Meat 333 (enlarged ed. 1944). (50.) Etzioni, supra note 5, at 139. (51.) Id. at 140. (52.) Etzioni, supra note 13, at 243. (53.) Lester R. Brown, The New World Order, in State of the World 1991, 4-8 (Linda Starke, ed., 1991). Brown contends that despite problems like the United States budget deficit and Third World debt, economists see the long-term economic outlook as very promising. Id. at 3-4. Ecologists hold that the single-minded pursuit of growth will lead to economic collapse. The earth's finite resources and natural systems cannot indefinitely support growth. Id. at 6. (54.) Hunter, supra note 36, at 319. (55.) Frank Gibson et al., Real Estate Law (3d ed. 1992). (56.) Leopold, supra note 6, at 240. (57.) Id. at 246. (58.) Id. at 251. (59.) The government negated the property rights of slave owners when slave-holding became abhorrent to society. Rights of dower and curtesy were re-labelled as "mere expectancies," not rights, and taken away by many legislatures and courts. Michelman, supra note 16, at 1104-05. The state of California reduced the extent of water use rights of landowners, and seems poised to diminish them further at the demand of the next drought. Freyfogle, supra note 40, at 1538. (60.) Michelman, supra note 16, at 1108. (61.) Freyfogle, supra note 40, at 1555. (62.) Freyfogle, supra note 12, at 253. (63.) Id. (64.) Sax, supra note 28. (65.) Weiss, supra note 7. (66.) Carol'M. Rose, Rethinking Environmental Controls: Management Strategies for Common Resources, 1991 Duke L.J. 1 (1991); see also Alison Rieser, Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory, 15 Harv. Envtl. L. Rev. 393 (1991). (67.) C. Edwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. Pa. L. Rev. 741, 744 (1986). (68.) Freyfogle, supra note 12, at 252. (69.) Joseph L. Sax, Do Communities Have Rights? The National Parks as a Laboratory of New Ideas, 145 U. Pitt L. Rev. 499, 500-01 (1984). (70.) Freyfogle, supra note 40, at 1545. (71.) Id. at 1548. (72.) For example, by destroying the rain forests, Brazil increases global carbon dioxide, and reduces our biodiversity. As a result, the planetary community is significantly poorer. We ask Brazilians to recognize their planetary responsibility to maintain the earth's interconnected natural systems and dependencies. (73.) Weiss, supra note 7, at 539. (74.) Id. at 525. (75.) Id. at 526. (76.) Hunter, supra note 36, at 333. (77.) Leopold, supra note 6, at 244. (78.) Leopold, supra note 6, at 239. (79.) Id. (80.) Etzioni, supra note 5, at 129. (81.) Id. at 131. (82.) Id. at 133. (83.) Id. at 137. (84.) Etzioni, supra note 5, at 146. (85.) One writer has expressed the expectations to include autonomy, privacy, opportunity to recoup any investment made in the property, and physical control or possession. Elizabeth G. Patterson, Property Rights in the Balance - the Burger Court and Constitutional Property, 43 Md. L. Rev. 518, 530 (1984). (86.) Hunter, supra note 36, at 378. (87.) Michelman, supra note 16, at 1105. Michelman notes that courts "have had no difficulty in upholding retrospective applications of supervening, sometimes severe, legislative restrictions on use, often on the theory that one's constitutionally protected property simply does not encompass uses that are legislatively determined to contravene the public interest." Id. (88.) Eric T. Freyfogle, Problems with Plowshares, N.Y. Times, Jan. 3, 1992, at A27. (89.) Rieser, supra note 66, at 413. (90.) Patterson, supra note 85, at 554. (91.) Karp, supra note 17, at 276-79. (92.) Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153 (1990); Florida Rock Industries, Inc. v. United States, 21 Cl. Ct. 161 (1990). (93.) Baker, supra note 67, at 746-7. (94.) Michelman, supra note 16, at 1102. (95.) Sax, supra note 28, at 188. (96.) William K. Stevens, Global Warming Threatens to Undue Decades of Conservation Efforts, N.Y. Times, Feb. 25, 1992, at C4. (97.) Id. (98.) Oakes, supra note 15, at 624. (99.) Baker, supra note 67, at 747. (100.) Id. at 744. (101.) Patterson, supra note 85, at 533-35. (102.) Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). (103.) John Stuart Mill, on Liberty 11-12 (1956). (104.) Brown, supra note 2, at 175. (105.) Id. at 176. (106.) Id. (107.) Id. at 175-76. (108.) Sandra Postel, Denial in the Decisive Decade, in State of the World 1992, 8 (Linda Starke, ed., 1992) (quoting Sara Parkin, Power & Green Politics, Resurgence, May-June 1991). (109.) Leopold, supra note 6, at 28.
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Author:Karp, James P.
Publication:Environmental Law
Date:Jul 1, 1993
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