conservation | Environmental Law Institute

ELI Report

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Author

Nick Collins - Environmental Law Institute

Environmental Law Institute

Current Issue

March-April 2024

Issue

More than 150 women forge North American branch of global water diplomacy and governance collaboration

Recognizing the urgent need for inclusive water governance on the continent, leading female diplomats have established the North American Women in Water Diplomacy Network. With support from a variety of stakeholders, including Indigenous community leaders, WWDN will establish a regional structure anchored in the Colorado River basin. It will include Indigenous leadership in alignment with the network’s “Path Forward for Women, Water, Peace, and Security” global strategy.

ELI’s partnership with WWDN is a critical part of the Institute’s work to create good governance of water resources. For its part, the network represents a collaborative effort among female decisionmakers and other experts in transboundary water management. Originating in the Nile Basin in 2017, the coalition has partnerships in Asia, Africa, Europe, and the Americas to help amplify women’s voices in water governance, especially addressing the significant underrepresentation of women in decisionmaking roles.

At the December launch event for the North American section, speakers included water commissioners, government officials, and tribal leaders. They underscored the value of collaborative efforts across the Colorado basin to elevate women’s knowledge and experiences in water governance. It marked a pivotal moment, bringing together approximately 150 water policy experts and decisionmakers to emphasize the importance of gender-inclusive approaches in water diplomacy.

The event facilitated networking opportunities, providing a platform for participants to exchange ideas and insights. Additionally, it showcased statements of support from contributing partners and sponsors, affirming the widespread commitment to advancing gender equality in water governance.

Looking ahead, the network is promoting advocacy and partnership through a series of activities, such as informational sessions, consultation workshops, and publication launches—all aimed at global collaboration among women water leaders.

Through these emerging initiatives, WWDN seeks to empower women, enhance their participation in decisionmaking processes, and promote sustainable water management practices worldwide.

ELI will continue to support the network with high-quality research, specifically looking to connect the dots between the Institute’s work on water tenure and gender-equitable water governance.

Wetlands Program’s multi-pronged approach to conservation

February 2 marked World Wetlands Day, always an opportunity to highlight the importance of these critical ecosystems across the globe, as well as the work being done to preserve and restore them. To celebrate, ELI released a new podcast episode with the director of the Institute’s Wetlands Program, Rebecca Kihslinger, along with Staff Attorney Therese Wilkerson and Research Associate Jesse Ferraioli.

The podcast discussed the program, which takes a three-pronged approach: research, stakeholder engagement, and educational outreach. The program analyzes laws and policies and provides tools for wetlands programs at various levels and locations.

The program emphasizes the importance of wetlands as critical ecosystems that provide many important benefits for people and wildlife and are integral to local communities’ cultures and economies. Wetlands benefits include flood protection, resilient infrastructure, carbon storage, and increased water quality.

To help spread the message, ELI hosts the annual National Wetlands Awards, a program that honors individuals who have done extraordinary work in wetland science, conservation, and community engagement.

The Supreme Court’s 2023 Sackett v. EPA decision has made wetland protection more critical than ever before. Accordingly, recent ELI projects include a review of state wetland programs and evaluation of compensatory mitigation under the Clean Water Act. The emphasis on state and local work also includes stakeholder engagement, like a recent workshop that brought together professionals from resource agencies and federal, state, and local emergency managers to discuss methodologies for prioritizing wetlands restoration.

Building more effective local peacebuilding interventions

Climate change exacerbates global tensions and creates new challenges for policymakers, making it a significant factor in shaping domestic and international relations. An evolving field known as environmental peacebuilding provides pathways to address the intersection of environmental issues, conflict, and efforts toward peace. It is a challenging endeavor, combining different objectives and metrics to address possible interventions.

To assist progress in conflict zones, ELI has published the Toolkit on Monitoring and Evaluation of Environmental Peacebuilding. The toolkit offers guidance to practitioners on establishing and executing monitoring and evaluation (M&E) systems for interventions that intersect with environment, conflict, and peace.

M&E fosters accountability to intervention participants and beneficiaries, within organizations and to peers. Moreover, it supports learning, which is essential for improving future intervention designs and implementations, as well as providing early warning in the often dynamic and volatile contexts where environmental peacebuilding occurs.

Structured around the intervention cycle, the toolkit comprises chapters on design, monitoring, evaluation, and learning, offering guidance on framing outcomes, developing theories of change, designing M&E approaches, selecting indicators, and managing data collection and analysis.

The toolkit also addresses emerging issues such as big data and geospatial analysis, making it accessible to practitioners from diverse backgrounds.

150 North American Women Join Water Diplomacy

Coming to Terms With Agents of Harm

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Author

Jamie K. Reaser - Smithsonian’s National Zoo & Conservation Biology Institute

Smithsonian’s National Zoo & Conservation Biology Institute

Current Issue

January-February 2024

Issue

Parent Article

Deep in the Weeds

Legal systems are underpinned by the use and interpretation of language. Key terms and their definitions are used to frame laws—and laws are the authoritative reference point for dispute resolution regarding varying perspectives on the application and effect of legal language. The same points are applicable to soft law—to guiding policy instruments without binding force that assume effectiveness.

So, what happens when terminology misdirects the intent and force of law (or policy)? The “invasive species issue” is a such a case warranting exploration. The United States first adopted invasive species definitions via Executive Order 13112 in 1999. They were slightly modified via EO 13751 in 2016. According to these documents, “‘Non-native species’ or ‘alien species’ means, with respect to a particular ecosystem, an organism, including its seeds, eggs, spores, or other biological material capable of propagating that species, that occurs outside of its natural range.” Additionally, they define “invasive species . . . with regard to a particular ecosystem, a non-native organism whose introduction causes or is likely to cause economic or environmental harm, or harm to human, animal, or plant health.”

Although broader in application, the U.S. definitions are consistent with terms adopted by intergovernmental organizations such as IUCN and multilateral agreements, mostly notably the Convention on Biological Diversity, which has an explicit invasive species work program based on definitions put into operation in 2002: An alien species is “a species, subspecies, or lower taxon, introduced outside its natural past or present distribution; includes any part, gametes, seeds, eggs, or propagules of such species that might survive and subsequently reproduce.” An invasive alien species is an “alien species whose introduction and/or spread threaten biological diversity.”

Although invasive species definitions vary in detail, they share two fundamental elements: a species did not evolutionarily originate in the location of concern but was relocated through human agency (trade, travel, transport) and the species is believed to cause harm or have the potential to cause harm to assets in the new locality. Law and policy frameworks thus direct prevention, eradication, and control actions aimed at species connoted as harmful when out of place.

Now, let’s appropriately apply science to these definitions: No species is invasive. This is to say that entire species are not relocated from native ranges to novel environments. Individuals and populations of species are translocated. Thus, this is not a “species” issue. Further, harm (which is subjective) is the result of organisms simply living out their biological functions where they have been placed or from which they spread.

There is no harmful intent inherent in these organisms. The harm emerges out of context-specific biological or socioeconomic interactions—frequently, in environments already subject to substantial human disturbance. The introduced organisms are set up for these impacts by the transference from their native range.

Why does this matter? Because entire species are being criminalized. The drivers of harm are human values and behavior—more goods and services, ever faster and cheaper. The problem is projected— scapegoated—onto flora and fauna when problem resolution actually rests with policing of the human animal.

Ironically, as currently framed, the “invasive species issue” is adversely influencing biodiversity conservation. Some species labelled as invasive are rare and endangered in the native ranges, thus warranting conservation action. The Burmese python is one example. The major conservation organizations have never front-lined the issue, in large part, because of the incongruency in messaging “save a panda” and “kill an iguana.” Invasive species denialism is on the rise as the public chooses to turn away from calls for wildlife culling and increases in pesticide application.

We need to redefine the invasive species issue. We need to focus on the human dimensions of conservation.

State Outdoor Recreation Offices Garner Rare Bipartisan Support

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Author

Linda K. Breggin - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2023

Issue

States around the country are establishing outdoor recreation offices to capitalize on a growing trend—Americans are increasingly participating in outside activities that range from fishing to skateboarding to gardening. According to the National Council of State Legislatures, a total of 18 states around the country, spanning the political spectrum, have created these units, known by the acronym ORECs. The states establish their offices using a variety of legislative, executive, and budgeting authorities and house them in varying departments, including those responsible for economic development, parks, and tourism.

Outdoor recreation participation reached a high-water mark in 2022, according to the Outdoor Industry Association. The participant base grew over 2 percent to more than 168 million citizens—55 percent of the U.S. population over six years of age. And the growth occurred across 80 percent of outdoor activity types. OIA also reports that the participant base became more diverse with “increases in participation among Black people, Hispanic people, and LGBTQIA+.”

To be sure, a prime motivator in establishing ORECs is economic. The outdoor recreation industry is big business, constituting 1.9 percent of the gross domestic product in 2021, at $454 billion—an increase of 18.9 percent in its annual rate as compared to 5.9 for the U.S. economy overall. According to Headwaters Economics, the sector is double the size of motor vehicle manufacturing and triple the size of oil and gas development. For some states, such as Hawaii and Montana, the outdoor recreation industry constitutes over four percent of their GDP.

Although ORECs focus on supporting the outdoor recreation industry, advancing conservation is integral to their mission. As a Center for American Progress report explains, outdoor recreation “holds an important opportunity for states, cities, and towns to embrace policies that protect their lands and waters,” as these polices are “linchpins” driving the industry. OIA’s state policy platform reflects this synergistic approach by emphasizing that climate change “poses a significant threat to the outdoor industry” and that a “healthy and growing outdoor industry depends on continual outdoor access for those of all abilities, ages, and backgrounds.”

Similarly, the Confluence of States, a bipartisan organization made up of many of the states that have established ORECs, seeks to provide not only “a platform to grow the outdoor recreation industry,” but to “protect our nation’s wild places and transform conservation into a driver for economic prosperity.”

Nevertheless, CAP, which recognizes ORECs as a “creative” tool for expanding the industry, emphasizes the importance of “conservation and equity as the basis of a strong outdoor economy” and warns that ORECs “would be remiss if they focused solely on tax breaks or business recruitment.”

Furthermore, CAP points out that “while recreation and conservation are very closely aligned, some conflicts remain—particularly in sensitive habitats and surrounding cultural resources.” Accordingly, CAP recommends that “some lands’ primary purpose must remain for conservation and wildlife habitat as opposed to recreation or resource extraction.” Furthermore, ORECs “can help to ensure that recreation is done in a sustainable way, so future generations can continue to enjoy the outdoors.”

The growing number of outdoor recreation participants may help achieve this laudable goal. A National Park Service article recognizes that managing outdoor recreation “is an increasingly complicated challenge,” but concludes that the “silver lining is that more nature lovers enjoying the out-doors means more nature lovers likely willing to help nature.”

And there is research that supports this proposition. Miller, et al., in a chapter in a U.S. Forest Service publication entitled “Outdoor Recreation and Environmental Stewardship: The Sustainable Symbiosis,” conclude: “Based on recent research on the connections between outdoor recreation and stewardship, we suggest that public land managers view recreationists as stewards of, rather than as threats to, the lands they manage.”

Ironically, the number of outdoor recreation participants may increase substantially due to climate change. In a paper published in the American Meteorological Society Journal, Willwerth, et al., observe that participation in outdoor recreation activities is generally lowest on the coldest days and highest on moderately hot days. Consequently, they predict a significant increase in outdoor activities in the future due to fewer cool days and a greater number of moderate and hot days. Their model estimates participation in outdoor recreation “will increase by 88 million trips annually at 1°C of warming.” Not surprisingly, the predicted increase is attributable largely to participation in water sports.

State Outdoor Recreation Offices Garner Rare Bipartisan Support.

Science of Federal Air Regulation and State Wildlife Management

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Author

Craig M. Pease - Former Law School Professor

Former Law School Professor

Current Issue

July-August 2023

Issue

The wildlife management science underlying hunting and fishing regulation by the states is rather different from the science of federal toxics, wetlands, and carbon dioxide regulation. So too, the political milieu wherein science enters wildlife regulation is quite unlike the politics of science found in federal environmental regulation.

Connecticut deer management is governed by its own specific state statute, the White-tailed Deer Management Act of 1974. To document its implementation of that statute, the Connecticut Department of Energy and the Environment’s Wildlife Division publishes annually a “Deer Program Summary.” The herd is about 120,000, with about 8,000 killed annually by hunters, and about 18,000 deer killed in collisions with autos.

It is a complex regulatory scheme, with 12 deer management zones, and specific regulations pertaining to rifles, muzzleloaders, shotguns, revolvers, bows, crossbows, does, landowners hunting their own property, Sunday hunts, wearing orange, and hunting near dwellings. Layered over this are additional regulatory provisions specific to the urban areas in the southwest of the state that have way too many deer, including sharpshooters, tree stands, and special permit provisions to incentivize hunting there. The typical hunter is unsuccessful. But in theory, a hunter who carefully followed the regulations could, in a single year, take 14 deer.

As laid out in the most recent summary, the Wildlife Division bases the hunting regulations on data from prior year harvest record, hunter surveys, habitat studies, road kills, and acorn crop size, all indirect proxies for just counting deer. Extrapolating to deer herd size from these indirect data is not entirely straightforward. That said, by employing a mix of formal data analysis and qualitative judgment, I am confident that the Wildlife Division has an excellent understanding of the Connecticut deer herd, looking across the entire state.

Yet the state’s hunting regulations are specific and numerous. There is much more limited and uncertain data supporting any given specific regulation (e.g., a bow hunt on private property, in one specific management zone). In essence, the regulatory scheme itself has created its very own scientific uncertainty.

This scientific uncertainty is an entirely different situation from that which arises in federal regulation of particles known as PM_2.5. There the scientific uncertainty arises because the regulations are working at the limit of the scientific frontier—the regulators are trying to regulate PM_2.5 simultaneously as scientists are pushing back the PM_2.5 scientific frontier. By contrast, there is not much of a Connecticut deer herd scientific frontier. The role of the Wildlife Division is not so much to purse new scientific knowledge, but rather, year-after-year, to gather the same data and apply the same analysis methodologies.

This is not a criticism of the Wildlife Division; it is a good thing, from the viewpoint of regulatory consistency. Indeed, although I have referred to the Wildlife Division’s deer population work as science, its role is more akin to engineering or medicine. Scientists seek new knowledge. Engineering and medicine apply existing knowledge.

In federal regulation, opposition to the regulation itself often masquerades as opposition to the underlying science. For PM_2.5, and much federal environmental regulation, that opposition typically consists of corporate and other economic interests. This is perhaps unsurprising, as essentially all federal environmental regulation is rooted in the Commerce Clause.

By contrast, much opposition to state hunting regulation, and the underlying recommendations of wildlife managers, comes from non-economic perspectives, especially animal rights activists. It is instructive to read the Humane Society’s toolkit, “Coexisting With Deer: An Advocate’s Guide for Preventing Deer Culls in Your Community,” side-by-side with the Wildlife Division’s “Managing Urban Deer in Connecticut.” These publications differ on many points, including immunocontraception (deer birth control), Lyme disease, fencing, and deer-vehicle collisions. It is not so much that the Humane Society has the science wrong; rather, they repeatedly fail to forthrightly acknowledge the high cost, impracticalities, and ineffectiveness of the policies they espouse.

We have too much PM_2.5, and often have too many deer. Whereas the wide prevalence of PM_2.5 makes its regulation more difficult, the wide prevalence of deer makes their regulation easier, by providing the regulator with a broad array of regulatory options to choose among, hopefully in ways consistent with the governing statute and science.

Science of Federal Air Regulation and State Wildlife Management.

Avian Decline: “Endangering the Engine of the Natural World”

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Author

Lynn Scarlett

Current Issue

July-August 2023

Issue

In September 2019, headlines announced that North America had lost three billion birds since 1970. Reporting on a study in Science by Ken Rosenberg of the Cornell Lab of Ornithology and others, media pronouncements sounded the alarm. The number was stunning. So, too, were the extensive amounts of research, technology, and complex analysis required to generate the total. The report was a wake-up call. Despite over a century of conservation efforts, bird populations are declining dramatically.

What has gone wrong? What could be done? Why does it matter? In A Wing and a Prayer: The Race to Save Our Vanishing Birds, journalists Anders and Beverly Gyllenhaal take us around the nation as they probe these questions with scientists, technology experts, conservation entrepreneurs, federal agencies, and others. Their journey reveals a challenge summed up by the Cornell Lab’s executive director emeritus, John Fitzpatrick: “It’s not rocket science. It’s vastly more complicated than rocket science.”

Fitzpatrick’s exclamation applies to more than the science, which includes ecology, ornithology, biostatistics, computer science, acoustic engineering, genomics, satellite imaging, artificial intelligence, nanotechnology, and more. It also applies to the practices of conservation.

Sometimes, observers of the nation’s conservation saga tell the tale as passage of a series of laws, from the Lacey Act in 1900 that prohibits trade in illegally taken wildlife and plants to the Migratory Bird Treaty Act of 1918, the Endangered Species Act of 1973, and many others. Sometimes the saga tallies up the extent of publicly protected lands, dollars spent, or species listed as threatened or endangered. All are part of the story, but conservation complexities emerge in looking at the stories of individual species, individual places, and the myriad decision dynamics of implementing laws, spending money, and managing places.

The Gyllenhaals help us see these complexities by zeroing in on particular birds in particular locations—grasshopper sparrows, Florida scrub jays, red-cockaded woodpeckers, greater sage-grouse, Hawaii’s palila, the cerulean warbler, and others. What becomes immediately evident is that, as Fitzpatrick says, “We’re not going to find a master solution.” The threats vary—from loss of habitat, climate change, pesticides, and diminishing water supplies, to the ravages on bird populations by domestic cats that roam outside. Some birds have a need for precise vegetation at a very particular time. The places requiring action stretch from the Arctic to the southern tip of South America.

But some common threads across these individual stories increasingly make up the tapestry of modern conservation initiatives. First is that public lands conservation is simply not enough to sustain birds and biodiversity. Second, as a corollary, private landowners are key participants. Third, conservation innovations that create tools that link conservation with sustaining livelihoods help engage farmers, ranchers, and others as environmental stewards. Fourth, conservation laws are not self-executing—sometimes laws are unclear, their meaning is contested, resources are insufficient, and capacity to act is constrained.

Regarding the first thread, public lands are, of course, phenomenally important. Creation of the national wildlife refuge system, for example, may explain why, of all bird species trends, wetland species—ducks, for example—constitute the only group not in decline. But, as Archibald Biological Station executive director Hillary Swain tells the Gyllenhaals: “A conservation strategy that just protects public lands will never succeed, because it will not have the connectivity among those islands of public land.”

Swain wears another hat, one that contributes to insights about the second and third strands in the tapestry—the importance of landowners and innovations that link conservation and livelihoods. The Archibald station owns and operates a commercial ranch on Buck Island in Florida. The idea? Demonstrate to other ranchers how to blend conservation with ranching that generates enough income to sustain the ranch.

Buck Island is not an outlier. Ranchers in states across the nation are undertaking practices, informed by science, that enhance soil health, improve water quality, and increase biodiversity, including bird habitat on grasslands that have seen among the greatest declines in bird populations over the past fifty years.

The balancing act, though, is not easy. Sometimes figuring out how to make conservation actions work in tandem with landowner economics requires new tools, sometimes derived from the marketplace. As the Gyllenhaals recount, California’s Central Valley once had “more than 4 million acres of marshes, bogs, and swamps.” Millions of migrating shorebirds used the area as a stopover. Today, just 200,000 acres remain, with much of the lands under agricultural production, including for rice-growing. The Nature Conservancy, working with scientists, figured out that if they could just get the farmers to keep the lands wet for a very short time, the birds could successfully migrate through the Central Valley. The Conservancy came up with the idea of “leasing” fields during the bird migration. Now, write the authors, over 100 farmers participate.

Building on the notion of linking conservation and livelihoods, Sarah Sawyer, who oversees California spotted owl conservation for the U.S. Forest Service, sees a “cautionary tale” in the nation’s history of protecting the northern spotted owl, a trajectory that put owl protection on a collision course with the local timber industry and others. The collision resulted in decades of legal battles that left just about everyone feeling angry and frustrated and deflected time and money away from owl recovery. The Gyllenhaals sum up the experience as a “roiling mix of politics, science, violence, and sabotage.”

Sawyer, who worked for a time with local people in Africa, concluded from that experience, as reported by the Gyllenhaals, that forests “need to be shared for recreation, timber sales, wildlife protection, and water.” “What I learned in Africa,” opines Sawyer, “is that’s how it has to work when people are relying on those resources for survival—day-to-day survival. How do we create the science that helps us sift through all those opinions and then use it to manage in the best way?”

The tale of the northern spotted owl illuminates the fourth strand in the tapestry—laws alone, including listing species as threatened or endangered, are not enough. Partly, the challenge is funding. Though the Gyllenhaals point to the money gap, they seem not to appreciate that sometimes the seeming inattention to species recovery by the Fish and Wildlife Service is not a matter of attitude. My own experience suggests utter lack of resources, not attitude, as a central challenge.

But even where laws are in place and resources are available, achieving the purposes of the laws is extraordinarily challenging. This is where conservation really becomes more complicated than rocket science. As the Gyllenhaals emphasize, how birds live and how they die present a “complicated mosaic.” Sometimes conservation choices are extremely difficult, as is the case with the California spotted owl, where the biggest threat is the invasion of barred owls that are decimating spotted owl populations. To remove the threat of this invader (the invasion itself a consequence of human decisions that have, in essence, created a pathway east to west for the undesired bird), agency officials are shooting the barred owls.

And sometimes working at the requisite scales and blending the needs of multiple species can be both challenging and complex, requiring partnerships across agencies, between public and private landowners, and with federal, state, local, and tribal governments. Sage-grouse habitat, for example, spans multiple states. Maximizing sage-grouse habitat may not be ideal for other grassland birds, such that success may require a balancing act to benefit multiple species.

Despite challenges and complexities, there are a few poignant success stories, as in the rebounding of the nation’s symbol, the bald eagle. Eliminating the pesticide DDT, along with other protections, has resulted in a 650-fold rebounding of nesting pairs of eagles.

The iconic eagle arouses the nation’s attention. More challenging is the fate of so many other birds, many hidden from sight. Throughout their narrative, the Gyllenhaals and those they interview ask: How can we get people to care? “How can people care about something they never see or even know exists in the first place?”

These questions matter because birds matter in fundamental ways. Loss of birds and biodiversity, in general, are “endangering the engine of the natural world.” Birds pollinate plants; they improve soils; they devour insects; their intricate beauty inspires us—they are, as John Fitzpatrick says, “among nature’s masterpieces.” They are also “an excellent indicator for measuring sustainability,” observes Viviana Ruiz-Gutierrez, Cornell Lab’s assistant director of Avian Population Studies.

Still, generating the needed funding to reverse steep population declines remains elusive. And some entities—public and private—circumvent conservation responsibilities. Though the Gyllenhaals applaud the military’s actions to protect the red-cockaded woodpecker, that record is mixed, as are actions at other military installations and some private-sector entities.

If there is one overarching message in A Wing and a Prayer it is that we have the knowledge and tools to reverse the trends of bird populations, even amid so much ecological, social, economic, and political complexity. Putting this knowledge and tools to work is the challenge before us. As ornithologist Peter Marra tells the Gyllenhaals, “If we can save the birds, we can save ourselves.”

Lynn Scarlett served both with the U.S. Department of the Interior and with The Nature Conservancy.

On the race to save our vanishing birds.

Trails Now Essential Community Assets

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Author

Kevin Mills - Rails-to-Trails Conservancy

Rails-to-Trails Conservancy

Current Issue

September-October 2020

Issue

Parent Article

A Political Tandem

Rail-trails are a true American success story, with more than 24,000 miles of disused train corridors converted into beloved multi-use paths, linear parks for walking and biking. Upon its founding, the Rails-to-Trails Conservancy prioritized tracking the rampant losses of train corridors, providing eager local advocates and governments with tools to build political will, acquire rights of way, and plan, design, construct, and maintain trails. Rail-trails proved popular in every state.

RTC reached the first of several crossroads that have shaped the movement with the landmark, reform-oriented 1991 federal transportation law known as ISTEA. Rail-trails are both greenways for recreation and highways for human-powered travel. Should we rely upon recreation or transportation for trail-building resources?

The decision to depend upon transportation policy was not obvious but proved propitious. ISTEA produced programs that remain the nation’s largest sources of funding for active transportation projects — together having provided more than $15 billion in federal investment plus $5.5 billion in matching funds.

Another pivotal point came in the 2005 federal transportation reauthorization. RTC helped create the Non-motorized Transportation Pilot Program, which provided $25 million each to four communities — rural, suburban, urban, and college town — to test whether focused investment creating critical infrastructure connections would prompt people to walk and bike instead of driving. The pilot was a resounding success, averting 85 million miles of driving in four communities during the study. Few realized the tectonic importance of the experiment. Railroad abandonments had slowed, but their legacy of disparate trails created a rich new opportunity.

Trails that don’t lead anywhere often proved less used and useful than those that connected to other trails and neighborhoods, and routine destinations like jobs, schools, restaurants, and transit. RTC organized dozens of communities to reimagine their existing trails as a seamless system.

Ten years later, hundreds of communities have ambitious trail and other active transportation network plans that will take many decades to build using only existing funding sources. While rail-trails typically serve as centerpieces of these networks, a focus on connecting people to the places they need to go prioritizes finding ways to fill critical gaps using available spaces, such as streets, utility lines, or active rail corridors with room for coexistence.

Network connectivity is the center of RTC’s work, including eight regional Trail Nation projects, such as the 800-mile Circuit Trails covering metropolitan Philadelphia and Camden. Long-distance trails, including the cross-country Great American Rail-Trail, serve as spines connecting communities and states along their routes. Together, networks and spines could form a national active transportation system akin to how roads connected America a century earlier.

RTC’s policy priority is to supplement existing programs with deeper investments to complete connected systems. Our challenge is to establish this innovation as federal policy and prompt more states to prioritize connectivity and invest resources.

In 2020, we encounter another critical juncture. COVID-19 has prompted a rapid boom in walking and bicycling, with trail use surging 200 percent at the pandemic’s height. People needing to get active outdoors for physical and mental well-being are relying on trails and streets temporarily closed to traffic. Non-drivers, including some persons with disabilities and essential workers, rely on trails to commute and meet daily needs, especially given limited transit options. A decade of rising pedestrian and bicycle fatalities, now about 20 percent of all traffic deaths, raises the urgency of providing safe routes.

Today, most everyone believes that rail-trails are nice to have, but now plans and policies must prioritize trail systems as essential assets, necessary to a community’s success.

A Political Tandem

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Author

Peter Harnik - Rails-to-Trails Conservancy

Rails-to-Trails Conservancy

Current Issue

September-October 2020

Issue

When the once-secure American railroad industry went through its grinding economic contraction in the 20th century, a notable casualty was the dense lattice of rail corridors that once connected virtually every city, town, hamlet, mine, and forest. Beginning in 1916, the system shrank from 254,000 miles to about 137,000 today. Many of those potentially useful rights of way were plowed under or otherwise lost forever, but thousands of others were saved by plucky activists or farsighted government agencies for non-motorized trails, utility corridors, and other public purposes.

Interestingly, the conversion of abandoned rail lines to trails wasn’t a Great Society-type program that came out of a mandate from Washington, D.C. It was a from-the-grassroots movement that bubbled up in the 1960s in several small midwestern places. But, within a few years of the creation of the earliest trails, the rise of some thorny political and legal issues — not to mention some exciting opportunities — elevated the issue to national prominence and caught the attention of Capitol Hill and the executive branch.

Federal agencies and ultimately Congress were pulled into the fray. Most relevant was the Interstate Commerce Commission, which had been dealing with abandonments for decades, but only in the context of a binary conflict between railroads and shippers. The idea of a “third way” — post-abandonment trails — was a new knuckleball that the commission was less than excited to take a swing at. Now, suddenly there was pressure from local communities and citizens organizations to slow down the process to afford them more time so that they could frantically gear up to rescue a line for a trail.

The other federal agency that perked up its ears to the faint sound of rail-trails coming was the Department of the Interior, specifically its small and obscure Bureau of Outdoor Recreation, a unit that had been created in 1962 by Secretary Stewart Udall to fill the space between the highly preservation-oriented National Park Service and the sports-and-crafts bent of local park departments. With a motivated and entrepreneurial staff, the bureau had developed a culture of activism, doing outreach into low-income communities that were often political tinderboxes partly because of a lack of outdoor places to exercise. Rail-trails, which were national in scope but not “natural” enough to pass muster with the National Park Service, were a perfect fit for the bureau, and in 1971 it published a visionary booklet called “Establishing Trails on Rights-of-Way.” Among other things, the publication exhorted activism and even noted the specific locations of hundreds of railroad corridors that had been abandoned between 1960 and 1970.

Meanwhile, two unrelated tides were rising on Capitol Hill. One aimed to solve the railroads’ economic problems, while the other sought to address the public’s demand for more trails. If joined together, they would make waves. Ironically, when it finally happened, the railroad law yielded a surprise trails program, and the trail act broke new ground in railroad practice.

First up was the railroad bill. By the time the Penn Central went bankrupt in 1970, the tightly regulated U.S. railroad industry was so deeply mired in crisis that Congress needed 11 years and five different laws to devise a way out. One of many sticky questions was whether railroads would be allowed to abandon money-losing routes and, if so, how. In 1975, when a Senate subcommittee held 15 days of hearings on the topic, virtually everyone who testified shared one of two opposing concerns — keeping the lines open for the benefit of shippers and communities, or sloughing off uneconomical routes for the benefit of railroads and their stockholders. But one subcommittee staff member, Tom Allison, had something else on his mind.

Allison, a young Seattle lawyer, was a strong runner (“he would cut back to quarter-speed so that I could keep up with him,” recalled one of his colleagues), he loved trains (“actually, he loved everything that went fast,” his wife later reminisced), and he was a clever tactician (“I have yet to find anyone who had his overarching understanding of the role of railroads,” reminisced another committee colleague, and he “was driven by notions of the good things that government can do.”). During his law school years at the University of Washington, Allison had closely followed a local controversy over the 1971 abandonment of a train track through the university’s grounds. The fledgling effort to save it as the Burke-Gilman running and biking trail may have had particular resonance for him since he had suffered leg damage in a bicycle accident while in school.

When Allison passed the Washington state bar, he had the honor of being sworn in by the Supreme Court’s pro-conservation justice, William O. Douglas, and then landed a clerkship with Senator Warren Magnuson (D-WA), chairman of the Senate Commerce Committee. In D.C., in his free time, Allison ran on the C&O Canal towpath (which had been saved and recently turned into a national park partly through the help of Justice Douglas). While running, Allison undoubtedly spotted the adjacent, little-used Georgetown Branch rail line, and he was probably also aware of efforts in nearby Virginia to create a trail out of the abandoned W&OD Railroad. He started wondering whether he could use politics to combine his instincts for railroad preservation with his interests in recreation and nature conservation. Fortunately, at work, he had been promoted to counsel for the subcommittee on surface transportation.

What Allison envisioned was the preservation of abandoned rail corridors. He may or may not have known about the many legal complexities that surround the ownership of the corridors, but, with Magnuson’s blessing, he took to Senator Vance Hartke (D-IN) the concept of a program for developing railroad rights-of-way as car-free transportation routes. In June 1975, Senators Hartke and Magnuson cosponsored the Conversion of Abandoned Rights-of-Way Act. The bill called for the identification of railroad rights-of-way without rail service (or where it was likely soon to terminate) and which were potentially suitable for biking or walking. It authorized $25 million for the Departments of Transportation and Interior to provide technical and financial assistance for the conversions. The concept was approved and folded as Section 809(b) into the much larger Railroad Revitalization and Regulatory Reform bill.

Every bill goes through markup — backroom discussion by the senators — before passage. For the 4R Act the principal participants were Hartke, Lowell Weicker (R-CT), James Buckley (R-NY) and Howard Baker (R-TN). Although markup sessions are initially private, after 30 years the record is unsealed. The conversation on Section 809(b), as revealed from the National Archives, was very brief:

Hartke: “Should states be assisted in the acquisition of abandoned rights-of-way for conversion to recreational uses? I think they ought to preserve them for bicycle paths and things of that sort.”

Buckley: “How much money is involved?”

Hartke: “$25 million. I think in a lot of cases they ought to have acquired these rights-of-way anyway. All right. Is there any objection to that provision?”

(No response.)

After passage by the committee, the full $7.6-billion 4R Act passed the Senate in December.

Two weeks later, the House of Representatives enacted similar legislation. It included a provision to set up a smaller, $5-million rails-to-trails program within the Transportation Department.

Since the House and Senate bills were not identical, a conference committee was set up to iron out the differences and bring the two bills into alignment. That committee accepted the more generous Senate rails-to-trails funding.

However, before the final vote, the Ford administration announced that the spending level was too high and threatened a veto. In response, the conferees returned for intensive negotiations with the White House. The three-year rails-to-trails program was reduced but it survived. President Ford signed the Railroad Revitalization and Regulatory Reform Act in February 1976. Thanks to Tom Allison, the United States finally had a national rails-to-trails program.

In reflecting on Allison’s work, his colleague Sallie Adams said, “Tom was able to keep the micro, the macro, and the public interest all in alignment.” He had done that with this program — a small strategy that, if it could prove itself, held the seeds for something much bigger. Sadly, while Allison had a very successful legal career, his behind-the-scenes role in the rails-to-trails movement wasn’t recognized during his lifetime. He died in 2012 with his achievement unheralded.

Meanwhile, an even more remarkable story was starting to play out in the other chamber of the Capitol, on the “trail side” of the coin.

When it came to footpaths, Congress had never shown much interest. It had created the 1968 National Trails System Act, but in comparison to canals, railroads, and roads, trails received little funding. To the limited extent that trails ever received support, it was always at the state or local level, and usually through private donations or volunteer labor.

Even the 1968 law, passed with great anticipation, was disappointing to its backers. Eight years after passage, so little had occurred on the ground that frustrated conservationists prevailed upon Representative Roy Taylor (D-NC) to schedule an oversight hearing. The testimony revealed that, in a typical Washington scenario, money had been authorized by Congress but then hadn’t been obligated by the Nixon and Ford administrations. It was like being told to go shopping with an empty wallet.

“In his gentlemanly way, Taylor pinned their asses to the wall,” recalled Cleve Pinnix, the committee staffer who set up the hearing. He was describing the predicament of the bureaucrats who came up to testify. The record clearly showed that significant trail money was badly needed. When the elderly Taylor retired soon thereafter, he was succeeded by a remarkable labor lawyer, a congressional bulldog from San Francisco named Phil Burton (D-CA).

Although parks were not Burton’s top passion, his primary interest in justice for the poor and downtrodden made him see parks as refuges for the less fortunate. As a San Franciscan, he also had a particular interest in preserving the redwoods and saving the green spaces around the Golden Gate Bridge.

Burton had staffer Cleve Pinnix do much of the policy work while he did the political horse trading. The first outcome of the collaboration was the breathtakingly vast National Parks and Recreation Act. (Memorably, when the $1.4-billion bill cleared a committee hurdle in only five minutes, a conservative congressman said, “Notice how quiet we are. We all got something in there.”) Passed in 1978, it still stands as the largest park bill ever voted by Congress.

The following year Burton picked up where he had left off. Since seven trail bills had failed to make it into the previous bill, the congressman and Pinnix pulled those concepts together as the nucleus of new legislation to amend the National Trails System Act. The bill mostly focused on the nitty-gritty needs of particular trails, but one section was different. It was lofty and non-specific:

“The secretary of transportation, in administering the Federal Aid Program, together with chairman of the Interstate Commerce Commission and the secretary of the interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976, shall encourage state and local agencies and private interests to establish such trails using the provisions of such programs.”

The bill passed the House on September 22. The vague “such trails” clause was simply referred to as one of “numerous technical and clarifying amendments.” During the House floor debate, it wasn’t even mentioned. The Senate also passed it, but time ran out before the bills could be resolved, and the measure died with the end of the session.

Burton planned to immediately reintroduce his amendments in the next Congress, but then came the political earthquake of the 1980 election. Not only was President Jimmy Carter defeated by Ronald Reagan, but the Democrats also lost their majority in the Senate as well as multiple seats in the House. Because of the precarious new politics, Burton asked his staff and allies to take the bill around to all the remaining senators and to members of the bureaucracy to make sure that no one had any problems with it. One of the young allies who literally walked the bill around the halls of the Interior Department was Craig Evans, the new director of the American Hiking Society. Normally, Evans recalled, when he spent time at the sprawling Interior Department, it was in the sixth corridor, at the Na-tional Park Service, but this time Burton specifically told him to go to a different corridor and show the bill to a young lawyer from Long Island named Pete Raynor.

Although Raynor had been working at a large New York law firm, he soon decided that he wanted to work for the public good, settled for a lower salary, and landed a job in the solicitor’s office at Interior. There, he cut his environmental teeth on a lawsuit over the newly established Redwoods National Park. Through that work he connected with Burton, who asked him to help draft legislation to enlarge the park.

“Burton was a brilliant, omnivorous, larger-than-life character with a steel trap mind,” recalls Raynor. “Anything he read, he never forgot. If you wrote him a memo, he could recall it better than you could. He remembered the exact wording of early drafts that had long been discarded. Plus, he was aggressive and fearless. He rose late, rarely got to the committee room before 4 p.m. and then worked past midnight. I would go over there in the evening and we’d kick around ideas for hours. I was mesmerized.” They wrote a redwoods bill together and Burton saw that it got passed in 1978.

Raynor, like Tom Allison, was a runner on the C&O Canal, which headed in the direction of his home in suburban Maryland. He too soon noticed the lightly-used Georgetown Branch railroad track which paralleled the towpath before curving off into the woods. “I thought, wouldn’t it be cool if instead of having my wife drive to pick me up from the Canal, I could run on the tracks, which would take me almost right home.” But, as a lawyer, he also realized that if the railroad ever stopped running, the easements underlying the track might likely disappear, breaking the corridor into useless individual parcels.

One of Raynor’s friends and mentors at the National Park Service was Chuck Rinaldi, the man in charge of land acquisition for the Appalachian Trail. At the time, the AT was painfully discontinuous, with many on-road sections substituting for proper natural trail routes. Rinaldi was an aggressive, skillful negotiator and land purchaser, and one of his mantras was, “Don’t buy easements.” In contrast, he pioneered a counter-intuitive approach of buying land with full title, then turning around and offering easements for things like cattle grazing, a second home, or a farm-road crossing. Spending time with Rinaldi gave Raynor a good opportunity to learn about the many problems and challenges that easements posed to maintaining a continuous corridor.

When Craig Evans carried Burton’s draft bill over to Raynor’s office and Raynor saw the sentence about railroad corridors, he knew immediately that it was not specific enough to make a difference in a legal dispute. Going to one of his superiors, he suggested the idea of something stronger. “How about a ‘bank’ for railroad corridors?” he hypothesized. “If they were in a bank, they wouldn’t be officially abandoned but could be saved for the future.” This was pushing an envelope that didn’t even exist. This was the invention of a unique device in public policy, soon to be called railbanking.

The response he received was enigmatic. “Whatever your idea is on this, I don’t want to know about it.” To Raynor, that was a go-ahead to try it on Burton’s people. Pinnix liked the concept, as did his Republican staff counterpart, Clay Peters. To the theoretical worry that the railroad industry might have a problem with railbanking, the staffers recalled one of Burton’s frequent responses: “I only deal with people at the table.” The railroads weren’t at this particular table (and not even aware of it). In any case, Raynor, whose old New York law firm had represented the Pennsylvania Railroad, felt he was attuned to the rail industry’s thinking about this issue.

“The railroads’ main fear was liability,” he said. “They didn’t really care about a bank. They just didn’t want anyone using their tracks, getting hurt and then suing. As long as we could protect them from liability, they didn’t worry all that much about the old corridors.”

Raynor loves what he calls “simple little laws.” When he sat down at his typewriter that day, the language that he banged out — only two sentences — did just that. To the bland original, which he left alone, he added some muscle:

“Consistent with the purposes of that act, and in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with the National Trails System Act, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes. If a state, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this act, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.”

In the bill’s accompanying report, Pinnix added a bit of explanation to bring the legalese into easier focus: “The purpose of this section is to encourage the development of additional metropolitan area trails in conjunction with the provisions of the Railroad Revitalization and Regulatory Reform Act of 1976. This reflects the concern that previous congressional efforts have not been successful. . . despite the fact that these efforts have also been to preserve established railroad rights-of-way for future reactivation of rail service. . . . Interim use. . . , if subject to restoration or reconstruction for railroad purposes, should not necessarily constitute an abandonment of such right-of-way for railroad purposes.”

This new language was added right around New Year’s Day 1981, between the end of the 96th and the beginning of the 97th Congresses. At the same time, Burton was being given the chairmanship of a different committee and had to step down to number two on the National Parks subcommittee. The new chairman became Representative John Seiberling (D-OH), a close ally and a committed supporter of parks and trails.

A few months later, after the subcommittee had held a public hearing, there was another closed markup session, in which the railbanking provision played only a bit role:

Seiberling: “[This amendment] deletes unnecessary language so that if some organization is willing to assume the full responsibility for assuming an old railroad right-of-way as a trail, paying the taxes thereon, then the interim use will be permitted. There is already in the law a provision authorizing the use of abandoned railroad rights of way for trails. This amendment protects railroad interests by providing that rights of way can be maintained even though rail use is discontinued, and assists recreation users by providing opportunities for trail use where such rights of way exist.”

Burton: “With the understanding that the railroad people under these procedures come to us — if they come to us — and say that this is something that is not acceptable to them, that we will drop it.”

When Seiberling began to explain that the amendment did not amend the existing Railroad Revitalization and Regulatory Reform Act, Burton interrupted him.

Burton: “Just to be sure that we do not have an inadvertent impact . . . the amendment is adopted subject to the previously stated understanding.”

After being voted out of committee toward the end of 1981, the bill finally came before the full House of Representatives on May 11, 1982, with Burton as floor manager. He had worked his usual dealmaker magic, and the floor debate was a love-fest, with members of all political stripes showing support. The bill passed, 389-6.

Over in the Senate, three months later, the Public Lands Subcommittee held its own hearing on the Trails Act Amendment. A cross-section of federal agencies and private hiking groups strongly endorsed the bill, but again the railbanking provision received virtually no attention. The only person who flagged its importance — the only one who even mentioned the word “railroad” — was Jeanette Fitzwilliams of the Virginia Trails Council. A month later, the Interior Department’s official response devoted only one pallid sentence to the topic: “While we strongly support the objectives of this provision, we defer to the views of the other agencies involved as to its enactment.”

The measure was reported out of the Senate committee but it unfortunately again lost out to the calendar. Failing to come up for a full vote in time, it expired with the 97th Congress. The legislation would have to start over once more.

This next time the trail gods were finally smiling. On January 27, 1983, the bill, unchanged, was introduced by Senators Frank McClure (R-MT) and Malcolm Wallop (R-ID). It passed the Senate by voice vote on February 3, passed the House in identical form by voice vote on March 15, and was signed by President Ronald Reagan as the National Trails System Act Amendments, Public Law 98-11, on March 28.

Two weeks later, on April 10, Phillip Burton died of an aneurysm.

Although neither Tom Allison nor Phil Burton lived long enough to be celebrated for their contributions to the nation’s conservation, recreation, and historic preservation, their legacies shine on in the more than 2,000 rail-trails that are in existence around the country. Meanwhile, Pete Raynor did live to be recognized for his “simple little law.” Upon the discovery of his role — 40 years after the fact — the Rails-to-Trails Conservancy in 2018 presented him with its Rail-Trail Champion award at a ceremony on the Capital Crescent Trail. TEF

Adapted from From Rails to Trails: The Making of America’s Active Transportation Network, by Peter Harnik, by permission of the University of Nebraska Press. Forthcoming May 2021.

The rails-to-trails concept is famous, celebrated throughout the nation. Millions of Americans use the trails for recreation and transportation. Forty years later, it’s time to acclaim the two behind-the-scenes staffers who made a miracle happen on Capitol Hill.

Encouraging Federal-State Partnership Key

Read more about Encouraging Federal-State Partnership Key

Author

Doug Wheeler - Hogan Lovells US LLP

Hogan Lovells US LLP

Current Issue

May-June 2018

Issue

Parent Article

The Debate: Reorganizing the Administration of Public Lands: Zinke’s Proposal to Revamp Interior Department

As Richard Nixon developed an ambitious environmental agenda after becoming president in 1969, he thought, also, of the need for reorganization of the executive branch to address emerging issues of air and water pollution, land use, and natural resource management. In The Morning After Earth Day, Mary Graham concurs that “these newly prominent issues confound the normal workings of government.” To correct these institutional deficiencies, the incoming president sought advice of his transition team and an Advisory Council on Executive Reorganization.

The transition team had initially recommended a new Department of Environment and Natural Resources. But the advisory council demurred, and proposed instead the establishment of an Environmental Protection Agency and a Department of Natural Resources, to consist of four divisions: land and recreation; water resources; energy and mineral resources; and oceanic, atmospheric, and earth sciences.

EPA was promptly established, but like earlier attempts to reshape the Department of the Interior by Presidents Franklin Roosevelt, Herbert Hoover, and Lyndon Johnson, the Nixon proposal for Natural Resources fell on deaf ears, occasioned by the entrenched iron triangle of Congress, interested constituencies, and civil servants in its defense of the status quo.

Secretary of the Interior Ryan Zinke is similarly interested in transformation of his department, in order to provide — he says — more efficient service to its diverse constituencies, a closer connection to the resources for which it is responsible, and cost savings. Although he has not yet proposed to assimilate natural resource agencies from other departments, possibly including NOAA and the Forest Service, Zinke has proposed to establish 13 “joint management areas” based on the natural delineation of ecosystems, watersheds, and landscapes. The admirable intent is to foster closer working relationships among disparate DOI agencies with responsibilities for the management of a shared resource, presumably reducing conflict and promoting effective cooperation within a designated resource area.

This realignment would be an important step in the right direction, long sought by conservation biologists and others who argue persuasively that the current array of agencies along state and regional boundaries does not correspond to the dictates of effective ecosystem management. So far so good. But, predictably, those who fear the effects of this reconfiguration, including state governments, have objected to the Zinke plan. By disrupting the old order, they suggest, the secretary’s proposal would sever well-established relationships with federal officials, and make access to the department more difficult. In response to these concerns, Zinke appears to have abandoned his preference for ecosystem boundaries. If so, he has relinquished the most compelling argument for an internal reorganization of the department.

The states are understandably concerned about any plan for reorganization which would impede, rather than facilitate, increased cooperation with the federal government on issues of resource management within their boundaries. But believing strongly in the benefit of such cooperation as a result of long experience at the Department of the Interior and as a state resource official in California, I am convinced that state boundaries and the physical location of regional offices are not nearly so important as a mutual commitment to open communication and effective collaboration.

Upon arriving in Sacramento to serve as Governor Pete Wilson’s secretary for resources, I quickly became aware that we could not tackle the state’s pressing resource issues without the active cooperation of our federal counterparts. California has its own endangered species act, state park system, historic preservation program, water resources department, and procedural mandates. It made no sense to administer redundant programs if, by sharing resources and expertise with agencies of the Department of the Interior, we could achieve better resource outcomes at lower cost.

Thus, with the cooperation of secretaries of the interior in Republican and Democratic administrations, we were able to merge the management of state and national redwood parks; to develop an ESA-compliant Natural Communities Conservation Program; to create a California Biodiversity Council and to design a CalFed Bay-Delta Program, among other joint initiatives, all of which are more effective than if they had been attempted by the participating state or federal agencies alone. Today, such federal-state joint ventures, usually with private sector partners, are commonplace in other states and regions, including the 10-state sage grouse initiative, the five-state Range Wide Plan for management of lesser prairie chicken habitat, and the Pecos Watershed Conservation Initiative in Texas and New Mexico.

If Secretary Zinke encounters continued opposition to his reorganization plans, as did his predecessors, he would be well-advised to pursue instead a virtual restructuring of the department, in which its agencies and employees are encouraged to seek common ground with their counterparts in state and local government and the private sector. They are — after all — only a phone call or e-mail message away.

Doug Wheeler is senior counsel with Hogan Lovells US LLP in Washington. His 49-year career in conservation, historic preservation, and natural resource management has included senior assignments at the U.S. Department of the Interior and the California Resources Agency.

Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One

Read more about Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One

Author

Richard Lazarus - Harvard University

Harvard University

Current Issue

March-April 2018

Issue

The National Geographic Society has declared 2018 the Year of the Bird, in honor of the 100th anniversary of the Migratory Bird Treaty Act. Even so, as underscored by two recent Ninth Circuit rulings and a major Interior Department policy reversal, the MBTA’s precise meaning and reach remain very much a live issue as the act begins its second century.

In Turtle Island Restoration Network v. Department of Commerce, the Ninth Circuit in late December agreed with environmental plaintiffs that the Fish and Wildlife Service violated the MBTA by issuing a permit authorizing a swordfish fishery to incidentally kill migratory birds by using “longlines,” which accidentally ensnare birds with their hundreds of baited hooks. Under FWS regulations, the interior secretary can permit a taking of a migratory bird for “special purpose activities” that benefit “the migratory bird resource,” “research,” “individual birds,” or another “compelling justification.” The court rejected the government’s contention that this “special purpose” exception could be fairly read to extend to “basic commercial activities like fishing” that did not further the MBTA’s conservation objective.

Environmental plaintiffs, however, fared less well in a second Ninth Circuit MBTA decision, handed down in early January. At issue in Friends of Animals v. Fish and Wildlife Service was whether the MBTA allows the government to permit the take of one species of bird principally to benefit another species. The FWS had permitted the removal of some barred owls because their spread into old growth forest threatened the survival of the endangered northern spotted owl in those same forests. Upholding the permit, the court found no support for the plaintiffs’ theory that the language of the MBTA, its implementing regulations, or the international accords underlying its enactment supported a “same species” limitation.

The most significant development affecting the scope of MBTA enforcement in the courts, however, does not arise from a judicial decision in the first instance. It derives instead from yet another major policy reversal by Interior under the Trump administration. Unless overturned by the courts, the department’s new position would dramatically cut back on the reach of the MBTA’s prohibition on the taking of migratory birds.

For about fifty years, Interior has taken the position that the act bars both direct and incidental takes of migratory birds. The former refers to affirmative, physically injurious actions directed immediately and intentionally against a particular bird. The latter refers to action, lacking such immediacy and intent, such as the longline swordfishing at issue in the Ninth Circuit’s Turtle Island case, that nonetheless injures the species. There are far more incidental takes than direct takes, and the government’s ability to protect migratory birds is dramatically reduced if the act’s bar is limited to direct takings.

Especially because the MBTA imposes criminal penalties for its violation, the government’s contention that the ban extends to incidental takes has long been understandably controversial. And there is a longstanding conflict in the federal circuits on the validity of the government’s view. The Second and Tenth circuits have upheld applications to incidental takes, with some limiting constructions to avoid injustices, and the Fifth, Eighth, and Ninth circuits have questioned that broader reading.

In late December, Interior’s solicitor issued a formal opinion embracing the act’s narrower view. The opinion withdrew the prior solicitor opinion that had reached the diametrically opposed, broader reading in early January 2017, just a few days before the end of the Obama administration. The solicitor newly reasoned that “interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

Looming, moreover, in the background are the possible implications for Interior’s new position for the Endangered Species Act. In 1995, the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, upheld Interior’s view that the ESA’s prohibition on the take of endangered species extends to incidental takes, including habitat modification. Justice Antonin Scalia dissented, arguing that the term “take” was limited to “affirmative acts . . . directed immediately and intentionally against a particular animal.” The solicitor opinion reversing the longstanding expansive view of the MBTA’s take prohibition cites favorably six times to Scalia’s Sweet Home dissent. If the ESA take provision is next on the solicitor’s hit-list, such a reversal would seriously threaten that act’s protections.

In short, 2018 may be the Year of the Bird — but it is far from clear that it will be a good year for birds and endangered species.

Will 2018 be the Year of the Bird? If so, not necessarily a good one.

Conservation vs. Exploitation

Read more about Conservation vs. Exploitation

Subtitle

Is Napa Valley a Sustainable Garden of Eden?

Author

Ridgway Hall - Chesapeake Legal Alliance

Chesapeake Legal Alliance

Current Issue

March-April 2018

Issue

Napa! What does that name conjure up? Delicious wines? A bucolic “paradise valley” with thousands of green acres stretching from the Napa River to the Mayacamas Mountains to the west and Howell Mountain to the east? Farmland undergoing rapid development? It is all of these, but the reality is more complicated. It is a microcosm of the struggle going on across America between profit-driven development and resource conservation.

Napa at Last Light: America’s Eden in an Age of Calamity is the recently published third volume of a trilogy on this subject by James Conaway. The first in the series, Napa: the Story of an American Eden (1990), a New York Times best seller, describes this place where climate, soil, and weather conditions are extraordinarily well-suited to the growing of grapes from which excellent wines can be produced. In the late 19th century a few adventurers, including immi-
grants from Europe who brought with them knowledge on how to grow grapes, matching grapes to climate, and the making of wine, came to the Napa Valley. They produced wine profitably, built large mansions on the hillsides, and then the combination of a grape disease and Prohibition shut them down. In the 1960s, people eager to leave city life for a living in a beautiful setting “rediscovered” Napa and revived the wine industry.

By 1976 the wineries that sprung up in Napa Valley were producing wine of such excellence that two Napa vintages, a cabernet sauvignon and a chardonnay, won a blind taste testing in Paris against some of the very best French wines. As the number of wineries expanded rapidly, other businesses began to arrive, bringing construction equipment and traffic. In 1968 the county wisely declared agriculture to be the “highest and best use” of the land and created in the Napa Valley the first “agricultural preserve” in the country. “Agriculture” included “the raising of crops, trees, and livestock, [and] the production and processing of agricultural products.” A house or farm building required at least 40 acres.

Conaway’s second book in the trilogy, The Far Side of Eden: New Money, Old Land and the Battle for Napa Valley (2003), describes the extraordinary wealth generated by Napa’s wines, and the arrival of absentee corporate owners and real estate developers whose main interest was making money. This led to planting vineyards on steep slopes, and the associated cutting of enormous numbers of trees, which in turn led to erosion and pollution of the Napa River, which runs from north to south through the valley. The river was home to salmon and steelhead before the deteriorating water quality drove them out. This development also began to take its toll on the appearance of the valley and the hillsides, including new structures, heavy traffic, dust, bulldozers, and other earth-moving equipment.

Napa at Last Light begins with a recap of this history, and then brings the saga up to 2017. (Disclosure: I read and provided comments on an early draft of the book). Conaway has spent over 30 years traveling up and down the approximately 25 mile Napa Valley and the surrounding communities, getting to know the people, their desires, values, and personalities. As a result, reading his books is not just a story of the evolution of a community. It is also getting to know the grape growers, the winemakers, and their families, many of the original owners, the preservationists, the concerned citizens, the newcomers looking to make big money fast, and the local officials. You encounter the organizations that spring up on all sides, and their interactions. After reading about the fist fight between Robert and Peter Mondavi to decide the ownership of the family business, you may never look at a bottle of Mondavi quite the same.

There are now over 400 wineries in Napa Valley, and efforts continue to increase production and profits. Some winery owners tried to increase their production by bringing in grapes from outside the valley. This increased short-term profits, but eventually debased the value of the winery name when the public found out that their bottle of “Napa Valley” wine was made from mostly non-Napa grapes, and didn’t taste quite as good. To curtail this practice the county passed an ordinance in 1990 defining “Napa Valley” wine as being produced from at least 75 percent Napa Valley grapes.

Also in 1990, with strong backing of citizens groups and environmentalists, Napa adopted an amendment to its general plan, known as Measure J, which stated that any change in land use provisions, whether by ordinance or permit, must first be subject to a popular referendum. This was challenged by winery owners and developers, but was upheld by the California Supreme Court in 1994. It has been invoked to challenge exceptions to land use laws with mixed success.

Many vineyard owners and winemakers have long felt they should be able to do whatever they want with their property. They began to chafe against the strictures of the “agricultural preserve” and the definition of “agriculture.” Using their wealth and influence they have been able to persuade local officials to overlook violations and to allow planting on more acres than authorized, illegal tree-cutting and construction in the wrong places. The threat which climate change poses to future grape-growing has been ignored. Some owners expanded what once was known as a “tasting” to include food service tantamount to running a restaurant. Promoted as the “full wine experience,” the events are high priced. Receptions and the like are being held, and the sale of T-shirts, bar equipment, and paraphernalia unrelated to wine has sprung up.

By 2008 the owners were promoting an expansion of the definition of “agriculture” quoted above to include: “and related marketing, sales and other accessory uses.” This would legalize the excesses described above, and more. They argued that the greater business and profits that could be generated from these activities would benefit everyone. There was widespread opposition among the other residents. Many feared further destruction of the natural beauty of the valley, increased traffic and noise, and further pollution of the Napa River, which was already listed by EPA as impaired under the Clean Water Act. However, this change had support among the planning department and the board of supervisors, and was approved as a “minor” clarification with minimal public notice.

While the owners reaped extraordinary profits, the farm workers and many other residents were barely getting by — some living in trailer parks not visible to most tourists. They resented the arrogance of the owners and developers, who seemed oblivious to the fact that their drive to expand operations and convert wineries into tourist attractions was destroying the qualities of the valley which brought people — including many of the owners — there in the first place.

To put the land use conflict into human terms, Conaway discusses several examples of profit-motivated outsiders who came to the Napa Valley with the aim of creating opulent wineries with no regard for the impact which development would have on the environment. One grew up in San Matteo, made a fortune during the tech boom, and bought 40 acres on a mountain adjacent to a 3,000-acre wildlife preserve and a state park, where he wanted to plant a vineyard. This would involve clear-cutting many large trees, removing boulders, and recontouring the land in an area that was ill-suited to development. Outraged citizens organized a strong effort to block it, and that battle continues.

Another example was a Texas real estate developer and part owner of the Dallas Cowboys who wanted to clear cut 500 acres, including an estimated 30,000 mature oak trees, ostensibly for a vineyard. His massive infrastructure plans strongly suggested an intention to build a large number of “ranchettes.” He had done a similar development in neighboring Sonoma County. Surveys indicated that the land disturbance would cause significant erosion, damaging Napa’s drinking water supply, adversely affecting fish populations, and destabilizing downhill soil. The public, fed up with deforestation and environmental destruction, rallied to oppose this. But the developer began a campaign of misinformation and bullying, and the county supervisors allowed the project to proceed. Lawsuits were immediately filed.

Conservation-minded citizens then drafted a proposed water and woodland protection initiative, and quickly gathered more than twice the number of signatures needed to get on the ballot for the 2016 election. The board of supervisors initially approved it to go on the ballot. Then they rejected it on the technicality, rarely invoked, that it failed to attach copies of regulations that might be affected. The citizens were left to start the process over again for the 2018 ballot, amid protests of “voter suppression.”

Near the end of the book Conaway observes: “‘Eden’ is a figurative stretch for what the valley once represented, but all vestiges of that early innocence are lost. The remnant fig leaf kept in place by the wine and hospitality industries grows more tattered every year, revealing more schemes to transform a way of life into a marketable experience as or more valuable than the thing itself.”

Napa at Last Light is a very engaging read and carries some important messages. The struggle going on in the Napa Valley is similar to struggles between developers and conservationists all across the country. At a time when our national leaders are calling for less regulation and making it more difficult to protect our environment, this book could not be more timely.

Is Napa Valley a sustainable Garden of Eden?

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