Property Rights v. Endangered Species : The American Dream and the Common Good by Charles Timothy Shates - HTML preview

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PROPERTY RIGHTS V. ENDANGERED SPECIES

 

THE AMERICAN DREAM AND THE COMMON GOOD

 

A graduate project submitted in partial fulfillment of the requirements for the degree of Master of Public Administration

 

By

 

Charles Timothy Shates

 

California State University, Northridge June, 2005

 

For Sue, my wife, Julia and Tessa, my daughters, and for future generations

 

ii TABLE OF CONTENTS

 

Dedication ii

 

List of Illustrations iv

 

Abstract v

 

Introduction 1

 

Chapter One

 

Wild Life: The Endangered Species Act 5

 

Chapter Two

 

Ground to Stand On: Property Rights 14

 

Chapter Three

 

Powers That Be: The Corporation 27

 

Chapter Four

 

Trees and Water: The Pacific Lumber Case 46

 

Chapter Five

 

Rivers and Highways: The Newhall Ranch Case 53

 

Conclusion 75

 

References 87

 

iii LIST OF ILLUSTRATIONS

 

Table 1. Projected Forest Seral Type by [Selected] Decades. 48

 

Figure 1. Newhall Ranch sign on Highway 126. 55

 

Figure 2. The eventual fate of the orange trees. 56

 

Figure 3. A cross-section of the Santa Clara River Valley. 57

 

Figure 4. Industrial park development in the town of Castaic. 58

 

Table 2. Newhall Ranch project permits and approvals required. 59

 

Figure 5. On one side of the river, housing in Santa Clarita. 60

 

Figure 6. On the other side of the river from the housing. 61

 

Figure 7. Traffic makes its way over a bridge. 63

 

Figure 8. Shopping center along one side of the river. 64

 

Figure 9. Southern California’s last wild river. 71

 

Figure 10. The Santa Clara River. 72

 

Figure 11. In the same general vicinity, the Santa Clara River. 72

 

Figure 12. The relatively lightly traveled Highway 126. 73

 

Figure 13. Zoning began with the best of intentions. 75

 

iv ABSTRACT

 

PROPERTY RIGHTS V. ENDANGERED SPECIES

 

THE AMERICAN DREAM AND THE COMMON GOOD

 

By

 

Charles Timothy Shates

 

Master of Public Administration

 

This study examines how notions about dominion, self-interest, private property,

 

and economic growth and how the development of environmental protections, property

 

rights, and corporations have influenced the shaping of the country. Two illustrative

 

cases are examined: Pacific Lumber, a large timber-owning concern in Northern

 

California redwood country, and Newhall Ranch, a large planned community in suburban

 

Northern Los Angeles County. The study concludes that a sudden, radical paradigm shift

 

is unlikely, but that accelerated incremental change may result from a convergence of the

 

ideas of stewardship, traditional liberal democratic problem-solving processes or direct

 

regulation, and green consumerism—representing fundamental shifts in the definitions of

 

self-interest and the common good, or public interest.

 

v INTRODUCTION

 

The Skeptical Environmentalist, Bjorn Lomborg’s popular book, began with the

 

assertion “things are getting better” and then the book questioned

the Litany of our ever deteriorating environment...the view of the environment that is shaped by the images and messages that confront us each day on television, in the newspapers, in political statements and in conversations at work and at the kitchen table (2001, p. 1).

Lomborg’s point, ultimately, was not that problems don’t exist. Rather, his point

 

was that, while things were not necessarily good, they were better than they used to be.

 

To prove his position, he cited such factors as improved sanitation, improved nutrition,

 

and longer life spans. Indeed, modern science has brought a flood of achievements in its

 

wake. It is just this success that has added credence to the mythology of progress which

 

is one of the hallmarks of modernism.

 

It should be noted that findings of fact made by the modern-day United States

 

Congress are supposed to be based upon the best scientific evidence available at the time.

 

In public administration, “Any final rule [issued by an administrative agency] must be

 

based on substantial evidence on the record before the agency at the time of the decision”

 

(Cooper, 2000, p. 152) [emphasis added]. In the Rules of the House of Representatives,

 

clauses 2(l)(3)(A) of rule XI, and 2(b)(1) of rule X, require that oversight findings and

 

recommendations be reflected in all Committee reports (U.S. House, 1998). The

 

Congress ultimately may make compromises or even disregard findings in the interest of

 

political expediency; unlike administrative agencies, the Congress is directly accountable

 

to the electorate. Notwithstanding environmental skeptics, such as Lomborg, who decline to

 

acknowledge the darker side of material progress, Section 2(a) of the Endangered Species

 

Act of 1973 begins with a brief enumeration of the following findings of Congress:

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people…

The quality of life issues that the human race confronts at the beginning of the 21st

 

century are caused, in part, by unbridled freedom in the use and development of private

 

property, and in part by market failures. Such problems as traffic congestion, poor air

 

quality, and loss of habitat are often the direct result of man’s economic activities. Many

 

problems are caused by the way we build; many by the way we extract and use natural

 

resources.

 

Efforts to alleviate environmental problems through policy have met with only

 

mixed success. This is for two reasons. First, symbolic actions give a sense of having

 

addressed the problem, when they are really only what Smith (1998) called “a suture, an

 

attempt to hide the wound that contemporary environmentalists are making to the smooth

 

fabric of productivist discourse” (p. 7). According to Cahn (1995, p. 24), policymakers

 

create and sell policy outputs to political consumers, addressing the problem symbolically

 

but failing to address the substantive issues. Second, some of the most successful pieces

 

of legislation have also been the most contentious. This is to be expected, given that, as

 

Cahn wrote, “Environmental policy is predicated on regulating the use and development

 

of private property,” (Ibid., p. 8) while at the same time private property underpins the liberal democratic tradition. To the extent that legislation such as the Endangered

 

Species Act has been successful in giving environmentalists a tool with which to fight

 

development interests, there has been also a significant amount of grassroots mobilization

 

in opposition to environmental regulation and generally in favor of liberal property rights.

 

This recent mobilization against environmental regulations has been very

 

successful because it taps into an emotional response to a very powerful American Dream

 

archetype. Individuals may have different versions of the dream, which has evolved over

 

the course of American history. (The dream of “a house in the suburbs,” for example, is

 

a far cry from the dream of “freedom to worship as one pleases.”) In a recent

 

development on this theme, Rifken’s book, The European Dream (2004), was based on

 

his observation that the American Dream was in decline and would eventually be

 

eclipsed by the new European Dream, which stresses personal development and

 

cooperation within community over competitive accumulation of wealth.

 

This paper explores the conflict between public policy and individual freedom in

 

the context of land use and development. Property rights rank among the most important

 

individual freedoms, but what happens when the exercise of those rights by property

 

owners interested in developing their land, for example, infringes on a neighbor’s quiet

 

enjoyment? Before the administrative state came into being, there existed a long history

 

of common law, the remnant of which is today known as nuisance law, which governed

 

such infringements.

 

There exists a strong tension between two fundamentally opposing environmental

 

philosophies that have shaped the development of the United States. These philosophies

 

can be summed up as falling under one of two categories of belief about humanity’s place in and relationship to nature. The first category can be called dominion, that which has

 

guided the expansive aspect of American history. It informs extraction and development

 

of natural resources, what Smith (1998, p. 5) called “the discourse of productivism.” The

 

second category can be called stewardship, and it informs the conservation of natural

 

resources. Freyfogle (2003, pp. 37-38) distinguished these two differing types of energy,

 

as represented by the terms ‘boomers’ and ‘stickers.’ The latter were noted for their

 

desire for ‘quiet enjoyment.’

 

The birth of the modern corporate form of business, not surprisingly on the

 

dominion side of the equation, has enabled more rapid growth and development of

 

resources because of its ability to generate greater amounts of capital. Growth and

 

development is good—to a point. Cells must grow and divide if an organism is to live,

 

but when cells grow too much, or divide too fast, the result may be harmful to the

 

organism as a whole. There is a name for this condition and—when malignant—it is

called cancer. CHAPTER ONE
WILD LIFE: THE ENDANGERED SPECIES ACT

Public policy can be defined as a public response to a perceived public problem.

 

In the late 1960s and early 1970s, Congress passed, and the Republican president,

 

Richard Nixon, signed into law, a number of Acts, among them the National

 

Environmental Policy Act, the Clean Air Act, and the Clean Water Act, designed to

 

protect the environment and reverse perceived environmental degradation. The

 

Endangered Species Act of 1973 (ESA) is a public attempt to address the narrow problem

 

of species extinction—the loss of biodiversity. Is this a legitimate problem? Species

 

become extinct as a normal result of the evolutionary process, but scientific evidence has

 

indicated that man’s activities have accelerated the rates of extinction far beyond the

 

background levels that existed previously, suggesting that the environmental impact of

 

these activities is significant. Detractors literally tend to miss the forest for the trees,

 

asking would we rather save an owl or our economic livelihoods. But the bigger picture

 

is far more insidious—for if all these other species are dying maybe man’s environment

 

is becoming unsuitable for man as well. It is particularly distressing to some scientists

 

that the world’s amphibians are rapidly disappearing. These creatures are considered

 

“indicator species,” like the miner’s canary that indicates when it is no longer safe in the

 

mine. The reason that animals such as frogs are so susceptible to environmental

 

degradation is in the nature of their biology. Frogs have numerous capillaries near the

 

surface of their skin and obtain a large portion of their oxygen directly from the air and

 

water to which they are exposed. The fact that they have been disappearing has scientists

 

alarmed. The U.S. Geological Survey has instituted a “frog watch,” asking volunteer citizens to report on their observations around the country (Where have all the frogs

 

gone?, 2002).

 

From a Darwinian perspective, perhaps man is, by virtue of his large brain,

 

destined to outlive many “weaker” species in his built environment. Assuming this is the

 

case, man must still make the utilitarian determination as to which species are essential to

 

cultivate for providing his basic needs: air, water, food, medicine, clothing, and shelter.

 

Until man has attained complete understanding of the biochemistry that underlies all life,

 

any loss in biodiversity should be looked upon as an opportunity cost. For example,

 

recently researchers in San Diego have discovered a new species of oceanic bacteria that

 

naturally produces a previously unknown compound that shows promise of being

 

effective in treating cancer (Wilson, 2003). The popular movie Medicine Man

 

(McTiernan, 1992), dramatizes this theme, suggesting perhaps it is better not to burn the

 

forest in the name of progress before such beneficial creatures can be discovered.

 

The ESA has been one of environmentalists’ most powerful weapons against

 

careless enterprise, but has been under attack recently by those who feel government

 

regulations infringe upon their property rights. In recent court cases, private property

 

owners have brought suits questioning the government’s ability to interfere with

 

development on private property. In Rancho Viejo, LLC v. Gale A. Norton, Secretary of
the Interior, et al
. (2003), the plaintiff sought to develop a housing project in northern

 

San Diego County and a survey, conducted to comply with the ESA, found that the

 

development would likely disturb the habitat of a group of endangered arroyo toads in the

 

area. Rather than accepting an alternative plan proposed by the Fish and Wildlife

 

Service, the plaintiff filed suit claiming the “the application of the ESA is unconstitutional because the federal government does not have the authority under the

 

Commerce Clause to regulate private lands in order to protect the arroyo toads on those

 

lands, because the toads live entirely within California.” The United States District Court

 

for the District of Columbia entered summary judgement on behalf of the defendants and

 

plaintiff appealed. Although plaintiff lost on appeal, the dissenting opinion suggests that

 

perhaps a gradual shift has been taking place, and that the pendulum is now beginning to

 

swing the other way—in favor of the industrial paradigm.

 

The following case, dealing with state property, demonstrates the weight of the

 

Endangered Species Act as a federal issue. “In Palila v. Hawaii Dep’t of Land and
Natural Resources
(1979), the district court carried…[the] suggestion of a federal

 

ownership interest in wildlife a step further. In Palila, the court upheld the Endangered

 

Species Act, as applied to nonmigratory species found on state lands, on the basis of the

 

treaty power and commerce clause. It nonetheless suggested that the ‘importance of

 

preserving such a national resource [as endangered species] may be of such magnitude as

 

to rise to the level of a federal property interest’” (Bean & Rowland, 1997, p. 22).

 

California has usually mirrored the federal environmental laws, sometimes

 

anticipating them. In the 10th Edition of The Guide to the California Environmental
Quality Act
(Remy, Thomas, Moose, & Manley, 1999), the authors review several

 

important court cases relevant to the issue of the California Endangered Species Act

 

(CESA). The authors discuss how CESA relates to the California Environmental Quality

 

Act (CEQA), and also how the latter relates to the National Environmental Policy Act

 

(NEPA ). CEQA was passed in 1970 (Public Resources Code Sec. 21000, et seq.) to require

 

public agency decision makers—such as, for example, a county board of supervisors

 

about to approve a development project—to consider the environmental consequences of

 

their actions. Although CEQA is compared to the National Environmental Policy Act

 

(NEPA) that was passed a year earlier, and upon which CEQA is modeled, the authors

 

point out that “Unlike NEPA, CEQA has not been characterized as merely a ‘procedural’

 

statute. Rather, CEQA contains a ‘substantive mandate’ that public agencies refrain from

 

approving projects with significant environmental effects if ‘there are feasible

 

alternatives or mitigation measures’ that can substantially lessen or avoid those effects”

 

(Remy, et al., pp. 2-3). Also, because the environmental review process involves the

 

public, it has become a means of enabling democratic participation. “Thus, the California

 

Supreme Court has stated that the CEQA process ‘protects not only the environment but

 

also informed self-government’” (Ibid., p. 3).

 

The procedural devices, as the authors call them, of the CEQA environmental

 

review can be viewed as various steps in the process. The most familiar of these

 

procedures is the preparation of an Environmental Impact Report, or EIR. The following

 

‘steps’ are not sequential; the negative declaration bypasses the EIR process, for example.

 

Simply enumerated, they are as follows: (1) the initial study, (2) the negative declaration,

 

(3) notice of preparation of an EIR, (4) draft EIR, (5) public review of (a) negative

 

declaration or (b) draft EIR, (6) written responses to comments on draft EIRs, (7)

 

certification of a final EIR, (8) mitigation reporting or monitoring program, and (9)

 

statement of overriding considerations. The principles governing the interpretation of CEQA are illustrated by important

 

California Supreme Court cases. CEQA was interpreted the first time in 1972 in the

 

landmark case Friends of Mammoth v. Board of Supervisors. In its decision the Court set

 

forth the principle that CEQA should be broadly construed “within the reasonable scope

 

of its language” to protect the environment. In later cases, “the court hinted that other

 

considerations may take their place alongside ‘the fullest possible protection for the

 

environment’… While the court neither distinguished Friends of Mammoth nor explicitly

 

rejected it, the court’s willingness to consider economic factors arguably departed from

 

the interpretive principle announced in the 1972 decision” (Remy, et al., p. 7).