Renewable Resource Policy

The Legal-Institutional Foundations

David A. Adams

• Publisher: Island Press
• Year: 2013
• Print ISBN: 9781597261739, 9781559632256
• eBook ISBN: 9781610913102
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Renewable Resource Policy is a comprehensive volume covering the history, laws, and important national policies that affect renewable resource management. The author traces the history of renewable natural resource policy and management in the United States, describes the major federal agencies and their functions, and examines the evolution of the primary resource policy areas.

The book provides valuable insight into the often neglected legal, administrative, and bureaucratic aspect of natural resource management. It is a definitive and essential source of information covering all facets of renewable resource policy that brings together a remarkable range of information in a coherent, integrated form.

CHAPTER I

Ancient Foundations

As precedent for natural resource actions we often cite recent court cases, legislation of the environmental decade of the 1970s, or the awareness of profligacy that arose in the mid- to late 1800s. But all these are merely the last stages in an evolution that dates to the dawn of history. The ethics that govern our use of natural resources are as much a part of our heritage as those that govern work, charity toward the unfortunate, and tolerance of those of different race or religious persuasion. These roots are not buried in the past; they form the foundation of modern legislation and frequently are referenced in contemporary legal decisions.

This chapter discusses three sources of our legal heritage: the Judeo-Christian background of most Americans, the Roman Code of Justinian, and the Magna Carta of King John. Each has contributed differently; combined, they provide the foundation of our modern legal system.

THE BIBLE

Those who have searched the Bible for a strong conservation or natural resource stewardship ethic have come away largely empty-handed; those seeking reasons for Western civilization’s consumptive attitude toward these resources (White 1967) have had somewhat more success. Authors of the Old Testament were more concerned with chronicling Jewish history and prescribing rules of conduct for the Jewish people, while those of the New Testament concentrated on salvation through Jesus Christ. Abundant natural resources were frequently considered gifts of the Almighty to deserving mankind, whereas scarcity, drought, and plague were attributed to mankind’s transgressions.

God’s intention that mankind was to be separate from and superior to other creatures and the ecosystems that support them is supported by the classic quotation from Genesis:

Then God said “Let us make man—someone like ourselves, to be master of all life upon the earth and in the skies and in the seas.”

And God blessed them and told them, “Multiply and fill the earth and subdue it; you are masters of the fish and birds and all the animals.” (Living Bible 1971, Gen. 1:26, 28)

Clearly, God was apart from and superior to the creatures he created. Mankind, created in his image, must be likewise and was directed to exercise dominion over the environment that surrounded him.

Much of the Old Testament emphasizes that natural resources were gifts of God placed on earth for the enjoyment of mankind:

“I have given you the seedbearing plants throughout the earth, and all the fruit trees for your food.” (Living Bible 1971, Gen. 1:29)

...[T]he Lord God has given us this land. Go and possess it as he told us to. Don’t be afraid! Don’t even doubt! (Deut. 1:21)

And he will love you and bless you and make you into a great nation. He will make you fertile and give fertility to your ground and your animals, so that you will have large crops of grain, grapes, and olives, and great flocks of cattle, sheep, and goats. (Deut. 7:13)

For the Lord your God is bringing you into a good land of brooks, pools, gushing springs, valleys, and hills; it is a land where...nothing is lacking; it is a land where iron is as common as stone, and copper is abundant in the hills. (Deut. 8:7-9)

And if you will carefully obey all of his commandments that I am going to give you today, and if you will love the Lord your God with all your hearts and souls, and will worship him, then he will continue to send both the early and late rains that will produce wonderful crops of grain, grapes for your wine, and olive oil. He will give you lush pastureland for your cattle to graze in, and you yourselves shall have plenty to eat and be fully content.

But beware that your hearts do not turn from God to worship other Gods. For if you do, the anger of the Lord will be hot against you, and he will shut the heavens—there will be no rain and no harvest, and you will quickly perish from the good land the Lord has given you. (Deut. 11:13-17)

Only one passage prescribes limits for man’s exploitive activities:

If a bird’s nest is lying on the ground, or if you spy one in a tree, and there are young ones or eggs in it with the mother in the nest, don’t take the mother with the young. Let her go, and take only the young. The Lord will bless you for it. (Deut. 22:6-7)

Thus the principle of removing the harvestable surplus while maintaining the breeding stock was a part of the Jewish tradition, but no other direct guidance is provided in the Bible. Those who argue that stewardship of natural resources is inherently part of the Judeo-Christian ethic (Berry 1979) do so from the standpoint that to be otherwise would violate other doctrines (e.g., that man must revere God, nature is from God and of God, and any desecration of nature would be an abomination). The argument is persuasive, but documentation is sketchy.

ROMAN LAW

Much of our law regarding wild animals, use of riverbanks and the edge of the sea (riparian and littoral law), admiralty, and the public trust can be traced directly to Roman law. Even today, courts may cite these ancient documents as precedent and basis for their findings.

Justinian’s Codification

The Roman legal system consisted of customs and traditions that were part of Latin culture, laws enacted by popular assemblies, rulings of the courts, and imperial proclamations. From time to time, as origins became hazy and intentions became vague, efforts were made to clarify and codify the body of Roman law (Buckland 1963, 1-12). The most famous of these were a series of codifications issued under the emperor Justinian, who ruled the eastern Roman empire from Byzantium during the early sixth century A.D. (Severy 1983).

The First Code appeared in A.D. 529 and consolidated and updated existing laws. Within a year, work began on a second compilation, and the Digest of Justinian (Pandectae) was issued in A.D. 533. This work collected earlier juristic writings and laws in a systematic arrangement and contained many transcription errors and deliberate changes from the older laws. Two other compilations, the Institutes of Justinian and the Quinquaginta Decisiones, were issued at about the same time. The Institutes was organized into four books covering the law of persons, things (property), obligations, and actions. Quinquaginta Decisiones contained Justinian’s imperial enactments. In A.D. 534, the Codex Repetitae Praelectiones was issued, containing legislation adopted since publication of the First Code and making that document obsolete. The final codification, the Novellae Constitutiones, issued in A.D. 546, contained enactments subsequent to the Codex (Buckland 1963, 39-47). Many inconsistencies exist between and within the documents, as might be expected from manual transcription from diverse sources (and perhaps intentional modification). Thus, one may find citations that both confirm and refute a position, just as one can with contemporary court decisions.

The Law of Things (Property)

Of the foregoing documents, the Digest and the Institutes contain provisions most relevant to natural resource issues. In particular, the law of things (res) provides the foundation for much of the natural resource and environmental law we practice today. The Romans recognized two basic classes of things, res in patrimonio, things that belonged to someone and were therefore private property, and res extra patrimonium, things that were outside private ownership but some kinds of which could be acquired by individuals under certain circumstances (J. Inst. 2.2.1). (Note: Unless otherwise indicated, citations to Justinian’s codification come from Scott’s [1973] translation.)

Res extra patrimonium included public property such as highways, rivers, harbors, and other transportation facilities (res publicae) and theaters, stadia, and universities owned by society in general (res institutiones). They also included common property resources (res communes)—the air, water, and seashore, which were owned by and open to everyone—and those that were owned by no one (res nullius)—either because they were incapable of private ownership, they had not yet been acquired by private interests, or they had been abandoned. This last category contained emergent but unclaimed land, wild animals, and churches, tombs, and cemeteries. The Institutes further distinguished between res extra patrimonium that were held by the central government as a private right (jus privatum) and could be treated as private property (e.g., highways and public buildings) and those that were held in public trust (jus publicum) and could not be conveyed (e.g., seashores and navigable waters) (J. Inst. 2.2.1).

Two methods were provided for private acquisition of res extra patrimonium. Wild animals, unclaimed islands, and other res nullius could be obtained by taking (occupatio) (J. Inst. 2.2.1[12]). Riparian owners could acquire accreted lands by incorporating them into existing ownerships (accessio) (J. Inst. 2.2.1[20]).

Animals

Animals were classified as wild (ferae naturae, literally “of a wild nature”) or domestic (domitae naturae, “of a tame nature”). The latter were res in patrimonio whether or not they were under the owner’s control. Should ducks, geese, or other domestic fowl escape and damage adjacent property, ownership was unchanged and their owner could be held responsible for the damage. Conversely, if escaped fowl were confined by the neighbor, he would have committed a theft (Dig. 41.1.5.6). Animals ferae naturae were owned by no one (res nullius) unless captured, killed, or otherwise prevented from returning to the wild (Buckland 1963, 182, 204-206). Bees and pigeons, animals ferae naturae, were res in patrimonio only so long as they returned to the hive or dovecote (animus revertendi); should they cease doing so they became res nullius and could be acquired by new owners through occupatio (Dig. 41.1.5.5). Prior owners of animals ferae naturae that were lost through escape were not liable for damages caused by the animals, however, for ownership—and thus liability—ceased when the animals escaped (Dig. 41.1.3.2).

Animals ferae naturae were granted the same status on private and public land, but a private landowner could deny access (Dig. 41.1.3.1). Ownership of a wild animal occurred only when it was physically possessed—mortal wounding or temporary restraint apparently did not suffice (Buckland 1963, 204-206). An anecdote from the Digest illustrates many of these provisions:

A wild boar was caught in a trap which you set...and after being caught, I released him, and carried him away....[Have I] taken away your wild boar? [And if I released him] and let him go into the woods, would he still remain your property? What action would be entitled against me?

The answer was...we should first take into consideration [whether the trap were set]...on public or private land; and if on private land, whether or not I did so upon my own or that of another, and if I set it upon that of another, whether I did so with the permission of the owner.

Moreover...was [the boar] caught in such a way that he could not release himself? (Dig. 41.1.55)

If the boar were securely held within a trap, lawfully set on public land, the trapper’s land, or land on which he had permission to trap, and the animal clearly was unable to escape without assistance, the trapper probably would acquire ownership though occupatio. In such a case, unauthorized release would be actionable. If, on the other hand, the trap were set on private land without the landowner’s permission, the acquisition itself would be unlawful; the trapper would never acquire ownership; and no action could ensue. If the boar could have freed himself without assistance, it would never have become the possession of the trapper.

Although many present-day hunting customs award the game to the hunter who has drawn “first blood,” our law is, as it was in the days of Justinian, that wild animals must be reduced to possession to become private property. In the early 1920s, Dapson and Daly were hunting deer in the same area in Massachusetts. Dapson wounded a deer, but before he could claim...

Table of contents

• About Island Press
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgments
• CHAPTER I - Ancient Foundations
• CHAPTER II - Our Constitutional Government,
• CHAPTER III - The Public Domain
• CHAPTER IV - Grazing Lands
• CHAPTER V - Forestlands and National Forests
• CHAPTER VI - Outdoor Recreation and the National Parks
• CHAPTER VII - The Nation’s Wildlife and the National Wildlife Refuge System
• CHAPTER VIII - Wilderness
• CHAPTER IX - Soil Conservation,
• CHAPTER X - Water Law
• CHAPTER XI - Federal Water Resource Development
• CHAPTER XII - Water Resource Protection
• CHAPTER XIII - Fisheries
• CHAPTER XIV - The Coastal Zone
• CHAPTER XV - A National “Environmental Policy
• APPENDIX A - Federal Government Organization.
• APPENDIX B - Treaties and Federal Statutes Cited
• APPENDIX C - Cases Cited
• Index
• Island Press Board of Directors