TRIUMPH OF THE COMMONS – A MIRACLE IN PROGRESS

We Americans are proud of our country; the reasons for our pride are as wide-flung and complex as the nation itself. But what if we are asked, not why we think our country is great, but why it is unique?

Unique is a tougher sell.  All the many things Americans have done first, best or biggest doesn’t imply that people of other nations have not participated in those same endeavors.

To be unique the accomplishment must not only be an original creation it also must stand over time in a character distinct and unmatched by subsequent imitators.

After much study I have parried down the list of candidates for American uniqueness to just two items.

First is our set of founding documents crowned by our national Constitution, and the organic principles of human rights we coded into governance by way of those documents.

Second is the preservation by national political will of large expanses of natural landscapes and wild ecosystems occupied by large, free-roaming populations of indigenous wildlife. This being done with a made-at-home, completely original system of governance applied within the framework of our Constitution and within the cultural norms of our evolving industrial society.

Indeed, the methods we used were so completely original that we had to invent a new word to describe them – conservation.

Only with our Canadian neighbors do we share this standard of uniqueness. And so closely bound are the conservation efforts of our two nations that one can simply describe this as one continental achievement, North American in character.

In the 224 years since the U.S. Constitution was enacted many another nation has imitated the process. Some worked, most didn’t. Not only was ours the first national Constitution - it remains the only one that has endured across centuries with its core principles still carrying the force of law.

Likewise, other countries have preserved some vestige of their pre-industrial environment; these usually take the form of small game parks, woodlands or similar remnant set-asides maintained solely for the pleasure of the wealthy or a ruling elite.

In fact, the first efforts of American wildlife conservationists were imitations of European feudal game parks.  But then, as America followed the same path of resource depletion plowed by preceding societies, we came to a national agreement that the wilderness frontier was necessary for Americans to be Americans – the idea of being free always implied having space in which one can roam freely. Simultaneously, even as we brought wildlife to the cliff edge of extinction with a few species falling over, we came to the civil decision not to take that last fatal step for all remaining wild species that could be saved.

Instead, we kicked down the walls of human precedence and started saving wild lands and restoring vanishing wildlife – not just on a small scale for blueblood sport, or for zoo and museum display – but on a massive, continental scale measured in millions of acres and millions of animals with the intent that our permanent internal frontier would be enjoyed by all the people and their posterity.

Many nations can rival our tall buildings, and grand architecture – our universities, highways and medicine. But no other people has come close to preserving anything like the vast and accessible natural landscapes and unfenced, free-roaming wild animals great and small of the United States and Canada.

For example: In 1872,Yellowstone was the world’s first national park. Today, several nations have parks to equal or exceed the size of Yellowstone. But no other nation comes close to matching our immense National Park system of which Yellowstone is only one unit.

As important as its originality, and in common with the U.S. Constitution, is the endurance across time of our great North American act of conservation will.  And nowhere else on the planet can 14 million citizens afford to buy a hunting and fishing license and also be free to go afield in wild places with good hope of success.

Yes, conservation means use – but wise use. Don’t let your use of the resource prevent it from being there ten generations in the future.

Even as our industrial civilization grows and our population expands we continue to preserve national forests, parks and monuments, prairie ranges, wildlife refuges and a dozen other versions of public natural lands and waters. If that is not a miracle of human civics pray tell what is.

I call this act of public will and democratic government the ‘Triumph of the Commons.’

But our conservation miracle was never a perfect feat. The miracle is continuously imperiled with the encroaching needs of people.  And it is, and always was, unfinished and sometimes sorely flawed.  Much work remains to be done.

The mission of Bull Moose Gazette is to bind the 19th Century roots of our North American Conservation system to the leaf and branch of the 21st Century.

Here will be today’s news, tomorrow’s challenges, essays, opinion and continuing recollection of what was done for us by generations before. Yes, our Triumph is an imperiled civic miracle and yes, it has been handed down to us both incomplete and flawed amid its splendid achievements. But, not only are we not dismayed by the challenge, we positively relish welding our link in the chain of conservationist generations.

So here we will tackle the work at hand as we stand our watch on the American conservation voyage.

Regardless of any controversy boiling in democracy’s hot kitchen, we will celebrate with pride the grand uniqueness that comes with being a conservation citizen of the United States or Canada.

~~ Ron Moody

PROPERTY IS PROPERTY AND RIGHTS ARE RIGHTS

By Ron Moody

Along with several hundred other Montanans I spent the morning of Monday, April 29 listening to arguments before the State Supreme Court in PLWA v Madison County & Kennedy.

Several newspapers covered the hearing but I am moved to write this column, not by the actual reporting, but by one repeated assertion in reader comments to those news stories.  A number of readers are supportive of Kennedy’s argument that his private property rights are violated by the Montana Stream Access law and by Section 4 of the Montana Constitution which mandates: “the Legislature shall provide for . . . cultural and recreational areas . . . and for their use and enjoyment by the People.” 

That perspective is fair enough; what dismays is the implicit view that the only property rights at risk in this case are those of the private property owner. Apparently, these folks only recognize the existence of property rights when property has a private owner.

To the contrary, this case is a dispute between two overlapping, and equally valid, property rights – public versus private.  Property owned by the public carries the same bundle of rights in law as property owned privately.

PLWA v Madison County thus contests the interests of two equally legitimate property owners when the two separately owned properties are merged together in one physical setting – in this case public water flowing over private land. Access to property is an established element of ownership; PLWA is in court defending the public’s right to access its legally owned property, water and wildlife, against Kennedy’s effort to deny that access.

James Kennedy clearly owns the land bounding the Ruby River.  The aggrieved owner(s) are the people of Montana through their trustees, the State Government and Madison County. The people clearly own the water and wildlife in the Ruby River and they own the prescriptive easement across Kennedy’s land and the river.

PLWA claims the public road prescriptive easement of Seyler Lane is wide enough to allow legal public access to the public waters of the Ruby River without creating a trespass on Kennedy. PLWA is appealing a lower court ruling that the easement narrowed at the bridge and thus precludes actual access to the water by public users.  Kennedy argues that simply floating over his private stream bed is trespass (not to mention touching foot to the stream bed while wading), and thus the Stream Access Law is an unconstitutional taking of his property.

The foundation of Kennedy’s argument is the Fifth Amendment of the U.S. Constitution that bars taking of private property without just compensation – thus, in the absence of ‘just compensation,’ no legal taking of private property can occur and passage of time does not mend the loss.

However, reading the Fifth Amendment in isolation of legal history requires us to recognize a much greater and more violent taking of private property occurring on this bridge crossing site in Madison County. That ‘taking’ is the creation of the Seyler Lane prescriptive road easement itself.  Employing the logic of Kennedy’s argument, the Fifth Amendment means that Seyler Lane and all the tens of thousands of other public roads established by prescription are illegal takings and should not be there.

The state stream access law is peanuts next to this historic and pervasive taking of private property for public use.  Remember that a prescriptive easement is nothing more than the creation of a public property right across private property by way of unchallenged lengthy and continuous public use of the right-of-way. No ‘just compensation’ takes place; a court simply rules that public use meets the standards of easement law and the public gets to use the private property in perpetuity.

Why was this taking not challenged by Kennedy?  Perhaps because prescriptive easements fall into a category of exceptions to the strict mandate of the Fifth Amendment that have become well and strongly established in U.S. law and broad local custom.  Other such ‘takings’ include zoning ordinances, police powers and public nuisance and public health and safety laws. (although zoning laws sometimes do get push back on takings grounds.)

The public taking of a prescriptive easement from a private property owner is a ‘taking’ on its face – but this taking, apparently, is simply “too big to fight” – reminiscent of banks too big to fail.

Rather than framing the dispute at the Seyler Lane Bridge crossing of the Ruby River as a violation of one property owner’s rights, I argue the conflict is that of two owners striving to resolve mutual, equitable use of property by both owners whose property occupies the same space.  Kennedy deserves full use of his land while the people of Montana deserve at least a limited ability to use their property – the river and the publicly owned fish that live in the river. 

Making rules to equitably govern this sharing of space was the purpose of the Montana Stream Access Law. As such, the Stream Access Law is no more of an abridgement of constitutional right than are laws against slander, or shouting fire in a crowded theater, abridgements of freedom of speech guaranteed by the U.S. First Amendment.

Of course, this logic becomes irrelevant if Kennedy’s real purpose is to seize control over the public property that flows across his land – but that’s a taking of a different color, isn’t it.