Resource-Owner Rights and Responsibilities to Invest
The ability of nonfederal forests to provide social, economic, and environmental benefits often rests on society's respect for the rights that many view to be associated with private forestland ownership. Conversely, society expects owners of forestland to responsibly use and manage their property in manners consistent with accepted principles of sound forest stewardship. Without such a mutual understanding, landowners and society in general have difficulty in determining if and when investments in nonfederal forests are appropriate. The dilemma is especially troublesome for owners of private forest property. Taking these aspects into consideration, an overview of stewardship and landowner rights and responsibilities is presented in this chapter.
The growing debate over how to deal with actual or potential adverse impacts of forest practices is in many respects a continuation of early concerns over the use and management of the nation's nonfederal forests (see especially Cubbage et al. 1993). For example, rudimentary statutes in colonial America protected game from exploitation and timber from wanton destruction. Although early 1900s efforts to federally regulate timber harvesting practices failed, the concerns lead to enactment in the 1930s of a variety of far-reaching federal laws that reflected the nation's growing interest in fostering a community of forest landowners that were committed to land stewardship (e.g., Clarke-McNary Act
of 1924). The adverse impact of forestry practices was considered manageable and primarily an issue of providing education and financial assistance in amounts sufficient to change landowner attitudes and actions. However, beginning in the early 1970s additional state and federal laws were established to deal with growing concerns over the status of natural environments, including forest environments. Federal examples are the Clean Water Act, Clean Air Act and the Federal Insecticide, Fungicide and Rodenticide Act, while state examples are the many state laws that regulate forest harvesting and management practices on private land. This most recent period places greater emphasis on government imposition of forest stewardship principles on owners of forest property. Doing so has lead to important debates over forest landowner rights and responsibilities.
Sustainability of forest and related natural resources is achieved in a number of ways, including through the responsible actions of private owners of forestland and through responsible implementation of public policies toward such property by the government. When properly exercised, these responsibilities become, in essence, investments. However, in recent years the distinction between public and private rights and responsibilities has become a major policy issue. In large measure, the issue arises because of such factors as increased government restrictions on the use of private land, increased U.S. Supreme Court protections of private property, increased public and community expectations for access to private forest property, and the appeal of property rights as a means of easing regulatory controls (Meltz 1995). Private forest management is engulfed in the issue of public and private rights and responsibilities and in the various remedies, including ''right to practice forestry laws," suggested to resolve it (Flick et al. 1995, Argow 1996).
As society acts to ensure the sustainability of natural resources in the context of different landowner circumstances, a fundamental issue that must be addressed is whether private landowners have legal or societal responsibilities to protect the land and water they use? The question is often addressed in terms of stewardship, although in recent years the discussion of stewardship has been subsumed in some ways into the larger discussion of sustainable management. Efforts to promote sustainable forestry provide an opportunity to consider the basis for a responsibility of stewardship and the mechanisms available for implementing it. The issue of stewardship over land and natural resources is at the heart of the Jeffersonian model upon which American democracy was founded and finds its roots in religious, political, and ethical principles upon which our society developed.
The responsibility of stewardship is not a new issue in American land-use policy. Henry A. Wallace, secretary of agriculture, in the forward to the U.S. Department of Agriculture's (USDA) 1938 Yearbook of Agriculture (USDA
1938) said, "The social lesson of soil waste is that no man has the right to destroy soil even if he does own it in fee simple. The soil requires a duty of man which we have been slow to recognize." In upholding a law in 1943 requiring advance notice for terminating farm tenancies, the Iowa Supreme Court stated the following about the role of landowners in protecting soil (Benschoter v. Hakes, 232 Iowa 1354, 1363-64; Iowa 1943):
It is quite apparent that during recent years the old concept of duties and responsibilities of the owners and operators of farm land has undergone a change. Such persons, by controlling the food source of the nation, bear a certain responsibility to the general public. They possess a vital part of the national wealth, and legislation designed to stop waste and exploitation in the interest of the general public is within the sphere of the state's police power.
Although focused on farmland, the above two statements provide a context for the discussion of owners' rights and responsibilities toward forest property. Two of the most commonly held beliefs today are that the present generation of landowners in effect is borrowing the land from future generations and that landowners are obligated to improve the land.
Coupling multiple-use methods, which provide the basis for much of America's forest-management education and policy, with long-term planning in forest-resource management makes forestry an important area for consideration of rights, responsibility, and stewardship issues. Any discussion dealing with sustainable management of nonfederal forestlands must address the issue of stewardship and individual rights and of landowners responsibilities (Box 10-1).
Private Property Rights and Societal Action
The U.S. system of laws and jurisprudence are based on the Magna Carta and English Common Law. In colonial times, colonists generally regarded forests as a liability and cleared them for higher valued farms and towns. In fact, many colonial laws promoted clearing forestland. This action of disposition, development, and private use prompted the first protective and regulatory statutes in the early seventeenth century. Forestland owners had been using forests as an unlimited resource and conservation of these lands was generally ignored. Protection laws existed in the 1800s, but these laws were not enforced until 1891. These initial acts set the precedent that government had the power to regulate activities on public and private lands. Colonial courts also enforced the English Common Law concept of nuisance—an unreasonable interference in the use and enjoyment of an interest in land—a concept still enforced today.
Ownership and use of private property are essential components of America's society and economy. Use of natural resources, such as forests and water, have helped fuel the growth of our society, provided employment for millions of people, and brought wealth to many landowners. Enjoyment of these resources,
through outdoor recreation and appreciation of wildlife, and scenic beauty, supports important cultural values that help define life in our nation. As America has developed, recognition of the multi-faceted value of natural resources—from economic, cultural, and psychological perspectives—has contributed to efforts to manage and use the resources in ways that protect them. That recognition can be considered the foundation of sustainability, and the goal of sustainable development has been integrated into many aspects of resource policy.
An important dimension of national efforts to promote sustainable use of natural resources is the need to reconcile the personal desires and objectives of private landowners with the interests of the public. Landowners, who own much of the property that constitutes America's natural-resource base, have various objectives for their property. The public also has objective relating to how natural resources are managed, most notably the objective of protecting the public from adverse affects. The expression of the public's objectives is most commonly seen in environmental laws and other property-related regulations that might restrict how land and resources are used. The potential tension between
landowners who use the natural resources that they own and the public who want to preserve other resources on that property is inherent in our society. From a legal standpoint, the relation between the actions of private landowners and those of the public in regulating how that property may be used is controlled by the Fifth Amendment of the U.S. Constitution. In more general terms, this relation is the subject of current discussion about property rights in the United States.
Another approach to rights and responsibilities is found in the native societies of North America, which had two institutional concepts underlying their land tenure systems: usufruct tenure (legal right to enjoy the fruits or profits of land belonging to another) and required sharing of land rent among the community.
Those emphasizing the responsibilities of landowners would appear to side more with the Native American view, although two distinctions need to be made. First, the principle that the Fifth Amendment does not allow landowners to harm the interests of the public still rests on the public's desires as a basis for limiting the rights of landowners to do as they wish with their property. The responsibility of a landowner to pay taxes represents some recognition of legitimate community interests in the land, but taxation does not limit on the definition of private property rights.
The second distinction is the presence of modern government. The definition of responsibilities in America often involves the actions of government. The Native American idea of community ownership of land involved local units, such as clans, numaym, villages, or bands. Confederacies, such as that of the Iroquois, might have been closer to the concept of modern government; however, they had rules that limited the power of the confederacy to interfere with local units.
Examination of Native-land institutions, therefore, raises the issue of the proper definition of "community" for the purpose of defining "responsibilities." During the series of public forums held by the committee for this report, many participants argued that current government policies to protect the environment are illegal and go too far in regulating forest harvesting practices or restricting landowner actions. Other participants argued that the government should be doing more to promote sustainable management of forest resources. Most agreed, however, that forest landowners recognize the need to manage their properties responsibly. Part of the challenge for public officials is to identify how best to work with forest landowners to help promote sustainable practices that reflect a commitment to long-term stewardship. A commonly accepted definition of stewardship and sustainable forestry must also be developed. Part of that task will involve identifying opportunities for forest landowners to manage their property in ways that are economically profitable and protect public interests.
The danger in discussion about sustainable management of private forests is that it can become embroiled in a debates over rights and responsibilities associated with private property, which obscures progress on efforts involving interested landowners. A recently developed program designed to promote sustainable forestry involves a number of forest-landowner associations. That program
shows the strong interest of private landowners in the topic and demonstrates an example of landowners taking part in the opportunity to work with interested groups (Box 10-2).
Native American Perspectives on Property and Sovereignty
Native American communities have world views that differ from the world view that governed the exploration and development of North America. Consistently, many native peoples objected to policies that did not show respect for the land. As environmental problems have become more important in recent years and as the widespread consequences of extreme environmental policies, such as the exclusion of fire, have become evident, American society has shown some interest in the concepts and principles of "property" as employed by native peoples.
Much of the interest in the world view of native peoples has focused upon issues of land ethics (Callicott 1989) and spirituality (Hughes 1983). Of equal importance, but largely ignored, are issues of land tenure and systems of property rights. One consistent policy among tribal leadership has been resistance to the concept of private property in land. Tribal leadership opposed two aspects of private-property principles. First, they did not want to allow members of their tribe to sell land without permission from the tribal government—whether it was a chief or a council of leaders. Second, even if a tribe was successful in opposing the sale by individuals of the land they claimed, many tribal spokesmen still insisted that their internal property rights not be private-property rights. Because of the diversity of native cultures in North America, most generalizations about indigenous property systems have to be made with care. The largest generalization is that most native cultures used a version of usufruct tenure: rights to the use of parcels of land depended upon use of the land. Categories used to describe land, however, were extensive. In New England, historian William Cronon described the situation as follows: "Property rights. … shifted with ecological use. … Hunting grounds are the most interesting case of this shifting, nonagricultural land tenure. The ecological habits of different animals were so various that their hunting required a wide range of techniques, and rights to land use had to differ accordingly (Cronon 1983)." What the Native Americans owned—or, more precisely, what their villages gave them claim to—was not the land but the things that were on the land during the various seasons of the year (Cronon 1983). However, Native Americans recognized that individual members of the tribe could have extensive control over particular parcels of land. The right of control, however, was contingent upon use of the land.
The Native American Reality: A Land Ethic. Native American cultures share an attitude of respect toward the world around us (Brown 1989; Callicott 1989; Nelson 1983, 1993). To summarize distinct world-view assumptions, Trosper (1995) offered the following four components to characterize the Native American definition of respect: community, connectedness, seventh generation, and humility.
Community: Men and women are members of a community that includes all beings. Each has its proper role and each has obligations to others. All beings have spirit. Human-to-human relationships are similar to human-to-animal and human-to-plant relationships. Human obligations in actions toward nature should mirror human actions toward one another (Fiske 1991).
Connectedness: One should expect that an action that affects one part of the environment will have impacts on other parts. Further, the connections are many and complicated. As a consequence of the assumption of connectedness, native peoples rarely classify other species as "good" or "bad." They assume that every being has a reason to exist, even if humans do not understand the reason.
Seventh Generation: Among humanity, past generations left a legacy, and humans have a duty not only to their children but to seven generations. This assumption of duty to the seventh generation leads to a belief that the land should be sustained.
Humility: In taking action, humans should be humble. The natural world is powerful and complicated. Connections are not obvious, but they are important when considered over the time scale of seven generations. Some tribes object to the concept of "management" and prefer the term "care-giving" to describe their philosophy of interaction with the land.
On reservations, tribes generally have rights of self-government that exclude land regulation by states. (The legal doctrines are complicated, however; see Getches et al. 1993.) Not only do tribes control timber harvest, they control other land uses as well. Federal statutes, however, usually apply either to Native American lands (if Congress was explicit) or to the Bureau of Indian Affairs (BIA) as a federal agency. Tribes must comply with the Endangered Species Act, the National Historic Preservation Act, and many others. Tribes are able to qualify for enforcement of matters under the jurisdiction of the U.S. Environmental Protection Agency. Application of some statutes, such as the National Environmental Policy Act and the Endangered Species Act, are controversial. These acts require action by the BIA, but if it is recognized that tribal land is private land, then application of these acts should be limited to tribes.
In the Pacific Northwest, tribes reserved the right to fish in common with others at accustomed fishing areas. Those rights have been upheld in recent court decisions (Cohen 1986). Treaties in the Great Lakes area, Wisconsin in particular, protect tribal hunting and gathering rights.
Alaska is governed by two major federal laws, the Alaska Native Claims Settlement Act (1971) and its amendments (43 U.S.C.A. § 1601-1628) and the Alaska National Interest Lands Conservation Act (16 U.S.C.A. § 3101-3133), which became law in 1980. Along with state law, these federal statutes define subsistence hunting and fishing rights. The federal law protects Alaskan native rights on federal lands, whether or not the state laws protect native rights (Getches et al. 1993).
Native Americans do not regard their lands as belonging to the federal government. However, federal policy has not adequately distinguished between tribal and federal lands. A representative of the Quinault tribe summarized the resulting conflict as follows:
"Indian forests are often managed with the objective of preserving natural and cultural values so harvest activity has not been as intensive as on nearby federal, state, and private lands. This situation has resulted in a growing tendency to rely upon Indian lands as wildlife sanctuaries or habitat or to restrict the exercise
of federally-protected rights. Under the ESA [Endangered Species Act], efforts have been made to shift the conservation responsibility onto Indian tribes to compensate for problems caused by non-Indian development and management practices. …" (Gary Morishima 1996)
Standards have been prescribed by tribal governments to guide the application of conservation measures whenever Native American rights or resources are involved. More fundamentally, however, the species-by-species approach to prevent extinction embodied in the ESA is at odds with the Quinault's broader perspective of consideration of the consequences upon the whole environment and future generations. Other tribes have expressed similar concerns.
For many decades, Native Americans applied higher environmental standards to their land than the federal government applied; for example, "sustained yield" for Native American land is defined only in terms of wood-fiber production. After preserving diverse habitats on their land with their own policies, tribes wish to maintain control of their land.
Balancing Rights and Responsibilities
The debate over property rights is not as simple as favoring private-property rights or favoring more government regulation. All citizens enjoy the freedom and economic potential of private property and the benefits of government programs. The issue is how to balance the property rights of individuals and protect the health, safety, and welfare of the public.
Use of private property is a fundamental component of American life and a major factor in our economic and political freedom. At the same time, the quality of life and success of the economy is greatly shaped by government action, whether environmental protection, land-use planning, or protection of public safety. The balance between private-property rights and state imposition of responsibilities on use of private property is one of the most fundamental issues in society. It has a constitutional dimension because of the Fifth Amendment prohibition against taking private property for public use without compensation. The debate over more protection of individual property rights or more protection for societal interests and creation of more private responsibilities has ethical and political dimensions in society.
The forest-resource community has a fundamental stake in the debate. Discussion of sustainable forest-resource management, individual stewardship, or environmental protection illustrates the range of issues involved in public regulation of forests. Whether it is protecting wildlife habitat or wetlands, controlling soil erosion, reducing potential fire danger, promoting sustainable management and harvesting practices, or preventing water pollution, important public goals for the nation's forest resources often cannot be achieved without affecting the actions of private forest owners and placing responsibilities on how they manage and use their property.
The effects of government actions can be as indirect as those that result from educational programs for landowners or can be as direct as enforcement of environmental or forest-practice laws. Most commonly, restrictions occur in the form of regulatory standards that establish responsibilities, such as requiring permits before certain actions or prohibiting some types of conduct (Ellefson et al. 1995). The effect of such regulations might increase costs or reduce the value of the property or income due to limitations on its use. Although some landowners might find such effects objectionable, courts have historically upheld the ability of the public to impose reasonable responsibilities for use on the owners of private. It is uncommon for regulations to result in loss of private land or removal of any form of economic use. When that has occurred, courts have recognized such results as violations of the Fifth Amendment. Consequently, judicial rulings on taking property in such cases greatly shape future environmental laws by defining the range of regulatory actions possible that do not require compensation.
Courts have traditionally been the sole source of authority for interpreting the Fifth Amendment, but in recent years, state legislatures and the U.S. Congress have entertained proposals to modify interpretation of the Constitution and alter the balance between the public and individual property owners. This trend has occurred as a result of increasing concern about the ability of government to regulate use of private property. The most common suggestion for legislative action is to limit the percentage by which a regulation can reduce the value of property before compensation is mandated. Although some states have adopted such legislation, others have not, leaving the current legislative debate over property rights inconclusive (Box 10-3).
Laws restricting use of private property or imposing responsibilities for its use might not be accepted favorably by landowners who believe their property is being taken. However, taking property from landowners should not imply that the laws in question are unconstitutional. Property rights have always been subject to the power of courts to limit uses to protect the interests of other landowners, which is the basis of nuisance law. More directly, property rights have always been subject to the power of government to enact reasonable restrictions designed to protect the public health, safety, and welfare, known as "police power." This is the basis for laws to protect water supplies from pollution and natural resources, such as soil, waste, and exploitation. In many ways, establishment of these responsibilities for private resource management has been the way society has defined stewardship.
Environmental restrictions on use of forestland, such as setback requirements for harvesting near waterways to prevent water pollution, limitations on clear cutting, requirements to obtain harvest permits, or acts to comply with forest-management practice are examples of laws that are controversial to some landowners. Enforcing requirements for management practices or regulations for property use do not necessarily result in taking property. The courts are inclined
to enforce the law if the property remains in private ownership, an economically viable use for the property is allowed, and a legitimate public-health interest is being promoted (Stedfast 1997).
Some restrictions do result in loss of property which might occur when the government chooses to regulate land use. Regulatory action might be taken especially in times of declining public budgets. Laws that work by making extensive restrictions on use of land, for example, habitat protections under the Endangered Species Act, might be more likely to result in property being taken than more traditional environmental protections that have a historic basis in public nuisance law. Even with the Endangered Species Act, courts have held that limiting the use of private land to provide habitat is not necessarily a taking of private property. However, a recent Supreme Court decision enables landowners to take legal action against the government if loss of property values is caused by regulation under the Endangered Species Act.
The purpose of the "taking" clause of the Fifth Amendment is to prevent confiscation of private land for public use. Courts have held that governments can go too far in obtaining public benefits by restricting use of private property without compensation. However, defining the limits on the reach of "police power" and defining how far public regulations can go in restricting use of private property before taking property have been difficult questions for our courts. The U.S. Supreme Court has noted its own inability to develop a set formula for determining when economic injuries from public actions must be compensated.
When property is physically occupied by the public, the owner clearly must be compensated, as is generally the case when all economically viable use of the property has been restricted to render it valueless (Stedfast 1997). That is the case unless the use of the property was considered a nuisance historically or a threat to the public. The issue is more complicated in situations where land is not physically taken but the use is restricted or the value is reduced, as is possible with many environmental or land-use laws. Could a law prohibiting clear cutting or a zoning law preventing converting forestland to houses be the same as taking property? Each case is likely to depend on the facts and the nature of the restrictions. Courts consider many factors when deciding a property claim, including the following: the nature of the restrictions and whether they promote a legitimate state interest; the impact on the property value and the owner's reasonable expectations to use the property; and the nature of the public benefit that is being protected or the harm that is being prevented by imposing responsibilities on the private landowner. As a general rule, courts will find restrictions valid if they are reasonably related to promoting a public interest and the landowner is left with some economically viable use of the property. Courts find for property claims only in extreme situations.
Limits on the "police power" are hard to define for other reasons. First, the nature of private property, or what society will respect as distinctly private, is
influenced by legislative action and can change over time. Second, activities seen as having an adverse impact on public health also change over time. The environmental movement and related regulations developed in the last 20 years demonstrate the changes over time. As society develops, recognition of what is private property and what activities are potentially injurious to the public might change. Efforts to promote sustainable management of forest resources are clearly part of this societal trend.
Changing views about private and public responsibilities do not portend that the government can decide that what is now considered private property may be taken in the future through regulation without compensation. Government regulations and changes in society's attitudes expressed in laws are evaluated by courts applying the Fifth Amendment (see Cubbage et al. 1993, Cubbage and Siegel 1995, Flick et al. 1995, Sanderson and Mesmer 1993, Sax 1983, Strong et al. 1996). The nature of public discourse over issues has a direct effect on how courts respond. With the emergence of property-rights movement (comprising groups and individuals who argue for stricter interpretation of the clause allowing the taking of property), the nature of public debate over environmental regulation has changed in the United States. Laws such as the Endangered Species Act and wetland protections have been a focus of these interested groups, but their actions have affected enforcement of laws relating to the use of private lands.
Today, any discussion about governmental approaches to implementing a resource-related goal, whether soil conservation, water-quality protection, or sustainable forest management, invokes a discussion about the implications of the proposed approaches on property rights. That is a positive development in one regard, because it requires regulatory officials to be sensitive to the impact of their choices on private landowners. For example, property-rights discussions have led to the following suggestions for designing regulatory programs on private forest management practices (Cheng and Ellefson 1993b):
- Advance well-defined and legitimate state interests in private forest property.
- Complement well-defined and long histories of public policy favoring environmental protection and land-use control.
- Promote the distribution of program benefits among many, widely dispersed segments of society.
- Avoid the promotion of severe reductions in the value of private forest property.
- Avoid denial of all economically viable uses of private forest property, if denial would result from standards requiring permanent physical occupation of private property.
- Apply rationally based and reasonably constructed forest-practice standards.
- Firmly link regulatory standards (required forest practices) to state interests in private forest property.
- Avoid burdensome and overly complicated procedures that deny use and management of private-forest property.
- Avoid arbitrary and capricious application of forest-practice standards.
Discussion of property rights in a forestry context has been valuable because it provides the opportunity for officials and policymakers to consider alternative methods that might be available to achieve the same goals. Conversely, increased attention to property rights concerns can also have negative consequences if it results in the refusal of public officials to act. When that happens the controversy over property rights might result in the delay of important societal objectives because of potential litigation or adverse legislative action.
New forestry laws illustrate the important impacts of the second stage of policy development. First, the forestry sector has been given the evidence of adverse environmental impacts and is defining mechanisms to correct the adverse impacts with ownership commitment to stewardship. Second, the forest industry is recognizing its impact on the environment. It is increasingly clear that society will not accept environmental problems as the cost of having reasonably priced lumber and paper. Third, laws and legal institutions are being used to deal with the impact on the environment and to implement a ''new relation" between forest owners and the environment. As a result of the shift in society's attitude toward use of forestlands, government programs are being reexamined.
Summary of Findings and Recommendations
Achieving the levels of forest stewardship that will ensure the sustainability of privately owned nonfederal forests implies a sensitivity to the public interest in private property as well as to the private owners interest in exercising certain rights in property. Private landowners most certainly have a responsibility to be good stewards of the land, while society has a responsibility to encourage them to fully exercise these responsibilities. In both situations, the nexus of the issue often involves agreement on acceptable standards of forest stewardship. The special perspective of Native American toward property can be instructive in this respect. The rights-responsibility dilemma can become especially acute when government implements regulatory programs. The latter should be designed to both foster stewardship among private owners while at the same time respecting deep-seated desires to exercise rights inherent in private ownership of forest property.
Acknowledge public and private rights and responsibilities associated with nonfederal private forests and the multitude of ways that these rights and responsibilities are exercised by various landowners.
This acknowledgment points to the following specific recommendations:
- Federal program goals and objectives should build on the variety of interests and objectives of nonfederal forest landowners.
- Federal regulatory programs should be designed to reflect public and private rights, responsibilities, and interests in sustained management of nonfederal forests, especially private forests.