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Environmental Justice.....

The other day, I was riding my bike with my son and a friend down a local bike path. The friend was not familiar with the area and asked about the group of houses on the left of the trail. I explained this was a local low income housing project that had been in existence since the 1970's or so. I explained that admission was income based, that it was inhabited by primarily African American and other low income, communities of color. He then looked to the left and asked what the large, industrial looking facility was on the other side. I explained that was the local community incinerator where the city and county trash went to be burned. Of course, a by product of such incineration is dioxin, a seriously dangerous compound. From being in the area, I also recall complaints about ash spread over cars and yards when there would be temperature inversions. I do not know which was sited first, nor whether this is a case of environmental racism or simply an unfortunate accident of geography. But it did get me thinking.

Just what is “environmental justice”? It typically is thought about in the context of poor or minority persons being sited as the location of a landfill, or targeted as the location for some equally polluting or environmentally damaging facility. The result to the population is alleged to be everything from a diminished quality of life to cancer. A civil rights case made up of a Love Canal situation.

Definitions are in order. Environmental Inequity is a geographic reality. It refers to a pattern in which hazardous waste sites, polluting industires, nuclear waste dumps and other environmental threats are located or occur near communities of color or lower economic power. David E. Newton, Environmental Justice, Second Edition, ABC-CLIO, 2009, also availalble as a ebook at www.abc-clio.com, p 2. Environmental Racism goes beyond inequities and suggests there is a reason for such inequities based on race. Id., p. 3. Environmental Discrimination is also used in referring to unequal distribution of environmental insults, but suggests other communities such as the poor or low income may be affected as well as communities of color. Id., p. 3.

Executive Order 12898 entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations” was signed by President Bill Clinton on February 11, 1994, to focus federal attention on the environmental and human health conditions of minority and low-income populations with the goal of achieving environmental protection for all communities. The Order can be found on several federal government websites. The Order directed federal agencies to develop environmental justice strategies to aid federal agencies identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. The Order is also intended to promote nondiscrimination in federal programs substantially affecting human health and the environment, and to provide minority and low-income communities access to public information on, and an opportunity for public participation in, matters relating to human health or the environment. The Presidential Memorandum accompanying the Order underscores certain provisions of existing law that can help ensure that all communities and persons across this nation live in a safe and healthful environment.

The House of Representatives sought to pass H.R. 1103 (110th): the Environmental Justice Act of 2007. The purpose of this Act was to codify Executive Order 12898, relating to environmental justice, to reuire the Administrator of the Environmental Protection Agency to fully implement the recommendations of the Inspector General of the Agency and the Comptroller General of the United States. It was introduced February 15, 2007 by Democratic Representative Hilda Solis from California. This bill was referred to committee and died when the 110th Congress adjourned.

However, courts have had a hard time recognizing how to enforce environmental justice. Cases are brought under Title VI, with jurisdiction being founded on 28 U.S.C Sections 1331 and 1343. A key question is whether there would be a private right of action.

Two Third Circuit cases have answered this question affirmatively. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997) cert. granted 524 U.S. 915, 118 S.Ct. 2296, 141 L.Ed.2d 156 (1998), cert vac. as moot 524 U.S. 974, 119 S.Ct. 22, 141 L.Ed.2d 783 (1998), a community organization sure the Pennsylvania Department of Environmental Protection. The basis for suit was that the Pennsylvania Department of Environmental Protection permitted an industrial facility in a predominantly black community. Although the Third Circuit found standing and a private right of action, the case never developed fully, as the Developer withdrew its permit and the case was declared moot. In Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) cert. den. 528 U.S. 1046, 120 S.Ct. 579, 145 L.Ed.2d 482 (1999). Third Circuit explicitly reaffirmed its position there is a private right of action.

Another early case, South Camden Citizens in Action, et al, v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 446, 52 ERC 1523 (USDC NJ, 2001) , is essentially the highwater mark of environmental justice lawsuits. A community organization brought a Title VI claim against the state Environmental Protection Agency claiming a decision to issue air pollution permits for a cement processing facility would have a racially discriminatory impact. The Plaintiff made a motion for a Preliminary Injunction and the court held that:

1. the agency, as a recipient of federal funding, had an obligation under Title VI to consider racially disparate adverse impacts when determining whether to issue permit, in addition to applicant’s compliance with applicable air quality standards;

2. the community organization made a prima facie showing that the operation of the permitted facility would have a racially disparate adverse impact;

3. the harm to the community would have outweighed the harm to the permittee; and

4. the requirement that the community organization post security would be waived.

In South Camden, the motion for a preliminary injunction was granted. Specifically, the decision turned on the application of 42 U.S.C. Section 2000d which prohibits discrimination based on race and national origin by recipients of federal funding. The evidence showed that 91% of the residents of Camden, New Jersey were people of color. As mentioned, the court found that adverse health impacts were statistically shown.

However, this was before Sandoval v. Hagan, 197 F.3d 484 (11 Cir.1999) Cert. Granted 530 U.S. 1305, 121 S.Ct. 28, 147 L.Ed.2d 1051 (2000) was decided by the Supreme Court. In Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511 (2001) Justice Scalia held no private right of action to enforce disparate impact cases under Title VI of the Civil Rights Act of 1964. The context of the case was not environmental justice, but rather a decision to offer English only driver exams. Justice Scalia and the Supreme Court found that 42 U.S.C.A. Section 2000d allowed private individuals to sue. They stated such a right to sue to enforce the section was “beyond dispute”. p. 1516, 280. However, in a move which gutted the previous statement, the majority held that the only prohibition is against intentional discrimination Id. Justices Stevens, Souter, Ginsburg and Breyer authored and joined in a blistering dissent that Justice Scalia's opinion basically made the Supreme Court a limited review federal tribunal.

Just as importantly, it forced anyone seeking to bring suit over an environmental justice claim to show intentional discrimination. A heavy burden in any case.

Environmental justice cases are significantly few, and for good reason after Sandoval. However one case worth mentioning is The Sierra Club, et al., v. Gates, 499 F.Supp.2d 1101 (SD Indiana, 2007). In that case, environmental organizations brought an action against the federal government to enjoin a chemical destruction program. The District Court held that the environmental organizations failed to show likelihood of success on the merits. It should be noted that this case was decided post 9/11, when it was felt there was an immediate need to get rid of chemical weapons. However, the case involved a lengthy process that had started in 1993. Also significantly, alternative waste disposal methods and sites also had environmental justice issues. One reason this case is noteworthy is because it was not brought under Title VI, but rather the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972(a), the Defense Authorization Act (DAA) 50 U.S.C. §1512 et seq., and the National Environmental Policy Act (NEPA).

Essentially the argument was that a supplement to the Environmental Assessment or Environmental Impact Statement was required because of changes in processing at facilities chosen after 2005, pursuant to 40 c.f.r. §1502.9(c). The District Court disagreed and the motion for preliminary injunction was denied. In 2008, the case was finally put to rest for good.The Sierra Club v. Gates, 2008 WL 4368531 (S.D.Ind. 2008), not reported in F.Supp.2d, involved the same case on cross motions for summary judgment. The Plaintiff’s motion for partial summary judgment was denied and the Defendant’s cross-motion for summary judgment on Plaintiff’s National Environmental Policy Act claims was granted. Defendant Veolia’s motion for summary judgment on the RCRA claims was granted and the Government’s motion for summary judgment on Counts 1, 6,7,8 and 9 was granted. Basically, the court agreed that the Army had taken a hard look at NEPA and even had looked again before making its decision to send chemical weapons to Port Arthur for incineration, rather than a DuPont facility. The environmental justice claim was denied because there was no underlying basis for the NEPA claim.

Although this was not a Title VI case, it evidences the same type of reasoning. If no law was broken, there could be no discrimination.

A further interesting fact is that there seems to be no legal protection for persons of low income. While many low income persons may very well be persons of color, that does not necessarily have to be the case. Many rural families in Pennsylvania are disproportionately impacted by oil and gas drilling. In fact, in some cases, their communities are specifically targeted for facilities by oil and gas companies promising jobs, infrastructure and tax benefits to communities. These poorer, rural communities do not have the wherewithal to hire attorneys and other experts and consultants schooled in oil and gas drilling. The promises are great, but probably not as great as the market would bear. There has been talk of oil and gas companies leasing in the Erie region of Pennsylvania at $50.00 per acre. The underlying oil and gas play is the Utica Shale, which in that region of Pennsylvania is likely a wet gas play with a large residual value in liquid constituents of gas. There is also an infrastructure in place to move that product. Yet the rentals are less than what is seen in other parts of Pennsylvania for a generally more homogeneous, but less lucrative, product. Ohio is seeing the same type of activity. West Virginia has been targeted because of its friendly regulations. However, one cannot help but notice that West Virginia has consistently had a lower per capita income than most states and that Ohio has had a very high unemployment rate.

It seems that environmental justice cases must involve public education, community organizing and political action to be effective. This will be especially true when the public being affected is not one of the traditional groups to be discriminated against.

One last case, not an environmental justice case, but one which is instructive should be discussed. That case is Massachusetts, et al, v. Environmental Protection Agency, et al, 549 U.S. 497, 127 S. Ct. 1438 (2007). In Massachusetts, states, local governments, and environmental organizations brought a suit for review of an order of the Environmental Protection Agency (EPA) denying a rulemaking petition to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act. This is a complicated case, which is worthy of consideration in its own right. However, for purposes here, what is important is that the Supreme Court found federal jurisdiction and state standing to challenge a decision by EPA to not regulate greenhouse gasses. EPA based this decision not on what was found in the Clean Air Act, but on the dual grounds that (contrary to their own counsel's opinions) the Clean Air Act did not give EPA jurisdiction to regulate greenhouse gasses and that even if it had the authority, it would be unwise to set emission standards at this time (2003). The Supreme Court had no trouble disagreeing with both propositions.

The lesson for environmental justice advocates is that there is a difference between an enforcement decision, or a permit, and a rulemaking proceeding. As part of a coordinated effort, a rulemaking proceeding can force action and explanation, also involving public participation and political pressure, in a way that may not be more forceful than an action to force enforcement or challenge a permit. In addition, such an action does not depend directly on intentional discrimination or a new right being found for persons of lower income. Instead, environmental justice advocates could do an end around the environmental justice aspects and try instead to simply reach the goals without directly addressing the environmental justice aspects.

I hope to write more on environmental justice in the future. I hope that our society can find a way to lessen all environmental impacts for all persons so that no one feels they are being hurt by decisions which benefit all of society. In the meantime, we must be vigilant to look for permitting and enforcement agencies to do the right thing and follow their own laws and policies. If they do not, look to those laws and policies for relief.

The Nature of Property Rights: Personal, Private and Public....

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I have been reading a lot of political economic theory lately.  Mostly Libertarian Socialist.  But it has gotten me thinking about the nature of property.   Sort of a little "hobby" of mine.  So I have been reading various textbooks, case law, and a little book by Proudhon called "What is Property?"  Some of you may have heard of it.  It is, unfortunately, not something you sit and read on a sunny afternoon, but something you read a page or two at a time and then try to assimilate. 

The first thing I did, even before reading a page of Proudhon's book, was to look for definitions of property. I turned to a hornbook where I read that “[w]hen an individual claim or interest receives recognition and protection by the state we say that the party concerned has a legal right in the matter under consideration.” So, for instance a right to be free in the possession and enjoyment of someone's land and chattels. The correlative is that there is a legal duty. Brown, Ray Andrews, The Law of Personal Property, Second Edition, ©1955 Callaghan and Company. p. 2.

“Legal rights are, however, not static things, but they may be created, transferred, and lost. This capacity in an individual of creating, transferring, and divesting himself of legal rights is known as a legal power.” Id., p.2. A person may have a legal power, but no right, as in a thief. But this still does not define “property” itself, but rather describes property “rights”.

Such legal rights have been divided in personam and in rem. Id., p. 3 In personam is a right which exists only against a person. p. 4 In rem is available against persons generally. p. 4. In personam, the correlative rights exist only with respect to a certain class of persons. With in rem correlative rights exist in persons generally. Again, useful ideas, but not a definition. So I delved further and did find the following:

In the popular sense of the word property is often used in reference to those tangible things, which are subject to the rights, which we designate by the term ownership. A man's property we say consists of lands, buildings, furniture, cattle, wagons, automobiles and the like. In the legal sense, however, property means not the thing itself, but the rights which inhere in it. Ownership, or the right of property is, moreover, nor a single indivisible concept but a collection or bundle of rights, of legally protected interests. The owner of a given piece of land or chattel has not only the interest of possession, and of enjoyment and user, but also that of transfer to another, and even of directing how it shall be disposed of upon his death.

Id. p. 6. Now, this truly is a definition! However, it is an interesting one because it does not define the thing itself, but rather the thing by our relationship to it. Sort of an “it's property because we say it is” type of definition. In fact, under this theory, you could own all the property rights and not a stitch of what any layperson would call property at all. And many people do.

The definition and concept of property is obviously more complicated. “Certain physical things, such as air, light, and running water are by their very nature incapable of being owned. It is impossible to exercise over them that power of exclusive control which is the very center of the concept of private property.” Id. p. 7. Looking at a hornbook on real property law, I found even less explanation of property. Rather there was a gradual presupposition that everything came from God, passed through the divine right of King's through their fall, through barbarian rabbles and came out the other end of a feudal system wholly intact.

Having said that, two concepts are worth repeating. First, “Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them.” Moynihan, Cornelius J., Introduction to the Law of Real Property, West Publishing Company, 1962. The second concept is how the philosopher Cicero (at least according to Proudhon) compared the earth to a theater. Each person is accorded a seat and holds that seat while they occupy it. When they leave it is free for someone else to occupy.

These statements hit upon an important truth.  There simply are different types of property with different qualities.  A tautology that can be quite helpful.  The real question is not whether there is or is not property.  Obviously there is some sort of property.  Different forces work upon different types to make them property or to cause them to retain value as property. It appears the definitions of property may change depending on the “plane of time” or how many seats are in the theatre and how many people want to see the show.

Proudhon seemed to think there were two different concepts:  private property and personal property.

There most assuredly is some sort of personal property.  My clothes, my house, etc.  These are - more or less - inviolate.  We as a society simply frown upon people ripping other people's clothes off.  No matter how outlandish they are.  And given the way many people would look without clothes, I can support this. But I have also learned that just because I possess something cannot be a basis on which I own it.  Otherwise, I would simply need to steal something to appropriate it.  Otherwise, I could own a person.  Last check, society still frowned on owning people.  In fact, in some circumstances we frown on "renting" people, owning some animals, owning some substances, etc.  

On the other hand, we discuss PRIVATE property also as a type of property.  So you can "own" land you have never seen and never visited.  It is possible you don't even know you own it, as you could have "purchased" it as part of an investment. It seems simple possession cannot be the basis for property. Perhaps put in a more modern context, you own what you create.  Again, to some extent this is obviously true.  I have created this text, I have created the thoughts, I "own" this.  I guess I could take ads and "sell" space, or try to copyright it as intellectual property.  I have done none of this.  But by the same token, what right have I to sell space on the sheet of paper (or the webspace) where you are reading this?  I created the text, but not the medium.  I did not create the computer on which I write.  These ideas are mine, but they are spawned by what I have read.  Nothing exists in a vacuum.  So if everything and everyone contributed to this blog - this so-called property - then everyone owns a little piece of it.  And if everyone owns it, then NO ONE owns it.  

Yet, as a society, we protect these two types of property equally. 

But should we?  Of course, no one should take your home.  But if you simply are not making productive use of something and someone else needs it, or can make productive use of it, then what is the purpose of protecting your inchoate interest?  Protection of such an interest serves only to perpetuate the tendency of money to make money, but serves no useful purpose to society other than to increase capital.  In fact, it could be argued by taking away the ability of someone else to use the property, we have actually decreased productivity. 

Do not take this question as meaning that all retirement savings or other investments should be socialized or that private property should necessarily be abolished.  The aggregation of money for investment is extremely important for large projects and can serve the public interest. 

However, is it not also possible that we should recognize the distinction between what is essentially a human need for personal property that is inviolate and preserved to them as the fruits of their labors and the private property that is nothing more than property as exists on paper?  Such a distinction could have profound impacts on the way we view the environment, agriculture, energy, and all consumer goods.  I don't suggest an answer, but let's have the debate.

There is a false and mistaken division between private and public property in the United States today.  There is also a lack of respect for personal property.  This false division and lack of respect leads to a flaw in society.  A small number of self interested individuals make a lot of decisions for a large number of individuals about what is best for everyone.  By understanding (and perhaps abolishing) the "public versus private" distinction, we can start down a path of reinventing our society and decision making to benefit all persons.

My research indicates that laws and governments - states - spend a lot of time "protecting" private property.  In many cases or places, this is defined by its juxtaposition to "public property".  In this definition, public property is that which is owned by the state, and private property is everything else.

Following these definitions, the Complaints of the Declaration of Independence and the protections of the Fifth Amendment to the United States Constitution look as if they are meant to keep the state from "stealing" someone's property.  Indeed, that is a true statement.  However, it is far from the whole story.

In thinking about property (personal, private or public), we need to start earlier and from a different perspective.  To a large extent, prior to the Magna Carta all property was owned by the king.  I recognize this is a gross exaggeration and that there are numerous examples where this was not true.  However, this is a useful place to start.  The Magna Carta essentially granted rights, or "property", as that term can be loosely used away from the king, while retaining certain rights, or "property" in the king.

Now, there is an interesting characteristic of property that everyone knows and everyone forgets.  Property owns you.  While you "own" something, you always have some sort of obligation, whether it be a tax, maintenance or simply finding a place to store the property.  And, of course, you always have the risk of loss.  After you give property away, of course, you no longer own it.  So the peculiar thing is that the only time you actually exercise all the rights of property that you may have is at the particular time you give away those rights.

That bears repeating:  only at the time someone actually disposes of their property is that person taking complete control and exercising all the property rights they own. 

Taken one logical step further, the best of all possible worlds would be to give away the (property) rights, while still maintaining the ability to direct the use and management of the (property) rights.  The king knew this when he put his seal on the Magna Carta.  The Barons that forced the Magna Carta did not get freedom from the king.  The state knows this when it allows you to "keep" your property free from taking for public use without just compensation.  On a personal level, the parent who "gives" a car to their child to drive to and from school and work, and nowhere else, practices the same type of control.

So let's use this concept and redefine public property.  Public property is not just the property "owned" by the state.  Indeed, ownership by the state is not nearly so public as one might think.  The ownership or use of the property is limited by the owner - the state - not the public.  Public property is, rather, the whole of the rights that the public has.  This includes positive rights such as traditional deeded ownership of land, as well as negative rights, such as the right to zone, or set a speed limit.  Let's also do away with the idea of the state "owning" these rights.  While modern law seems to treat that as true, I am proposing that is the wrong way of looking at things.

The King gave way to Parliament in England.  However, in the United States the King gave way to the people.  In fact, in the Commonwealth of Pennsylvania, the rights have been protected by the Commonwealth as if in Public Trust.  The Pennsylvania Constitution essentially gives the people rights which - most rightfully - should be public property.

So then, private property is everything not owned by the people, right?  One certainly can make that distinction logically.  However, there is another more fundamental distinction at play.  Since so many property rights are subject to so many rights of the public, is there not a third, more inalienable property right?  Did the Declaration of Independence not indicate there were inalienable rights such as life, liberty and the pursuit of happiness?  Can someone take your intellectual property?  You can give it, perhaps without protection, but can they actually take it?

My suggestion is that there are certain personal property rights which are inviolate.   Nor should these be limited to your thoughts.  Life, liberty and the pursuit of happiness come to mind.  The clothes on your back should be your personal property, subject to no one else's right to remove them.  Of course, the line gets blurred, but generally the fruits of your labor should be yours.  You create it, you keep it or dispose of it.

However, all other property, including the money received if disposing of personal property, and no matter whether "private" or "public", is simply property.  Again, all other property, whether "private" or "public" is simply property.

It is neither good, nor evil.  One property right is limited by another.  In a society, one in which presumably there is a social compact, the concept of correlative rights allows for seemingly incongruous positions on property.  Taxes are an example of incongruous positions.  If your personal property was inviolate, and you sell it, why wouldn't the income be inviolate.  This is because taxes are simply a method of aggregating capital that presumably the public has agreed upon (this is another subject, for another day, but remember that whole "taxation without representation" thing). 

So the important thing turns out not what kind of property right we have after all.  The important thing is what we as a society choose to do with these rights.  Right now, much wealth (a form of property) is concentrated in a few holders.  This is not necessarily bad.  A concentration of wealth allows for investment.  What is dangerous is how the decision is made how that wealth should be exercised.  In other words, how and when will it be given away?  To who?  What restrictions will be placed on how that wealth is used?  As a society, we should be wary of  allowing a small group of persons to make those decisions.  Likewise, we still have the same tensions as the founding fathers regarding the tyranny of the majority.  More recently, we need to be concerned about the tyranny of what is loosely termed special interests. 

While I cannot answer specifics as to ownership or wealth transfer or regulations and rules on the use of property (who am I to impose this order unilaterally anyway), I do suggest that people stop thinking in terms of public versus private (and left versus right).  We need to begin to think of "us" and what is best for ourselves and our children.  It is not best for a small number of private interests to make public decisions.  It is not best for the public to abdicate their public responsibility and allow a small minority of persons to hold capital with little, if any, accountability to the public.

Talk with people.  Talk with your family.  Talk with your friends.  Talk with those who disagree with you.  What kind of social conscience do we all agree a large company like Walmart should have in return for the public allowing them to exist and concentrate wealth in a small number of people?  What are we willing to do to achieve this? 

Oil and Gas as Subject to the Public Trust...

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 I have written about wildlife and the public trust. Part of the reason is that I would also like to discuss how other natural resources should also be part of the public trust. The Environmental Amendment, in fact, makes this imperative.

Pennsylvania is currently in the midst of an oil and gas boom. The Marcellus and Utica Shales. Much information about this can be found on the websites for the Pennsylvania State University Extension Service, or even found in any Google search. There can (and should) be a discussion of whether this is good or bad. However, there should also be a discussion of the nature of the rights in oil and gas. I will use this as a jumping off point for the discussion of natural resources in general.

First, let's start where we were and discuss deer. Deer are very important to the Commonwealth. They are the state animal. Throughout the years, they have provided food for Pennsylvanians, as well as an export to cities such as New York City. So successful was this export that deer needed to be protected and the taking and possession of deer, among other wildlife, is highly regulated pursuant to the Game and Wildlife Code, 324 P.S. §§101, et seq. The Pennsylvania Game Commission is even charged with managing wildlife with due regard for the Commonwealth’s hunting and trapping heritage.

Deer are wildlife that move freely on and off property. They are ferae naturae. An individual can only legally possess in accordance with the Game and Wildlife Code, 34 Pa.C.S. §§101, et seq., which requires certain paperwork. Simply shooting a deer does not make it the shooter’s property. A shooter must have a license and must inflict the mortal wound and then tag the deer before it can be legally possessed. A landowner cannot fence their property and take ownership of the deer on the property, they must have a permit to be the owner of the deer behind the fence. In fact, with fencing and the associated paperwork someone can own a deer, but if the deer escapes and is legally shot and tagged by someone else, the prior ownership can be lost. See Potts v. Davis, 149 Pa.Cmwlth 8 (1990), citing Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) where the Commonwealth Court noted, “it is pure fantasy to talk of ‘owning’ wild birds, fish or animals…”.

Likewise, oil and gas are important to the Commonwealth. Drake’s well was drilled in the Commonwealth. There are many jobs that depend upon the oil and gas industry. Oil and gas provide energy not just for Pennsylvania, but also for the lucrative eastern market. There are impacts to the environment because of oil and gas and the oil and gas industry. In addition, the oil and gas industry is highly regulated. See, e.g., Title 58 of Purdon’s. Oil and gas moves freely on and off property. They have been termed ferae naturae. Westmoreland & Cambria Natural Gas Co. v. DeWitt, et al, 130 Pa. 235, 18 A. 724 (1889). An individual can only possess oil and gas with the proper paperwork. Drilling alone does not make oil and gas the driller’s property. A producer must have a permit and take physical possession of oil or gas before the oil and gas can be said to be legally possessed. A producer cannot simply lease a property and take ownership of the oil and gas on the property, they must have a permit to drill, drill and remove gas. In fact, even if a property is leased, someone with a right to drill in the same strata can remove all the gas and the first producer’s ability to remove oil and gas can be lost. Jones v. Forest Oil Co., 194 Pa. 379, 44 A. 1074 (1900).

Commonwealth case law has long recognized that oil and gas are different by their very nature than coal, minerals or real property. Id. While the previous paragraphs’ assertions regarding oil and gas are seemingly radical, they are, in fact, based upon sound law in this Commonwealth. First, oil and gas leases and reservations are interpreted with respect to the intent of the parties at the time of entering into the contract. Szymanowski v. Brace, __ A.2d ___, 2009 WL 3790561 ( Pa. Super. November 13, 2009). The current oil and gas activity in the Utica and Marcellus Shales was certainly not contemplated. Second, recent cases have begun to develop a jurisprudence of natural resources law. Cases have recognized the difference between ownership of a natural resource and actual production rights to that resource. Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989); Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009). In addition, cases have recognized that oil and gas are not “land” within the classic meaning of that term. Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002). Finally, such developing jurisprudence is in accord with the best interests of the Commonwealth when dealing with other natural resources.

First, the intent of the parties must be examined. Many times courts observe the plain language of the document. Very few older documents speak about size of well pad sites, how roads are determined, what use can be made of minerals or water, or any number of any other rights necessary for production of gas shales.

In the 1930’s, wells were vertical wells with 40 acre drainage areas. Well sites may have been the size of a small truck and the expected life of a well may have been 25 or 30 years. Thus, when a buyer of the surface evaluated a reservation, they could reasonably expect a small surface impact for a relatively short period of time. Conversely, they did not expect that 79 years after their purchase, millions of gallons of water would be used to fracture subsurface zones, that such water would be injected, stored and transported in and through his property, and that 10 acre well pads with cleared pipelines would crisscross the property rendering large areas unusable. Based on the producers’ theories, if the Marcellus was pumped to exhaustion this year, the producer could come back 100 years later and pump it again using new technology. The surface owner would never be able to quietly and peaceably enjoy the estate for which they bargained.

Producers, likewise could not reasonably expect the result urged in case law across the Commonwealth. Coal, can be drilled located and tested, and the extent and quality of which can be measured with some accuracy. Thus, someone reserving coal knows what they will have in 100 years with a high degree of certainty. By contrast, an oil and gas producer will have no guaranty gas will be there tomorrow, let alone 100 in years. By fact of nature and geology, gas reservation are time sensitive and economic and law must recognize this time sensitive component to the rights of production.

In terms of pure real property law, these issues are not issues of oil and gas ownership, but rather of production rights and what those rights constitute. Recognition of oil and gas as ferae naturae, not subject to ownership as land, but only recoverable through the exercise of production rights is perfectly logical. In fact, the law has a word for such a right: profit a prendre. Such a profit a prendre is not listed as the subject of a quiet title action. 

           Likewise, jurisprudence that is developing seemingly struggles with questions of ownership of oil and gas and the exercise of rights of production. In the case of Independent Oil and Gas Association of Pennsylvania, et al., v. Board of Assessment Appeals of Fayette County, 572 Pa 240, 814 A.2d 180 (Pa. 2002), the Supreme Court found that oil and gas were not land subject to taxation. The majority based this on the principle of ejusdem generis, but Justice Nigro in concurrence (joined by Justice Saylor) made a different observation. “…I would simply hold that Appellees lacked the statutory authority to tax Appellant’s interests because oil and gas are of a fundamentally different character than real estate.” Id., at 185 [Emphasis added]. Recognition of this difference can be found in cases decided both before and after the Independent Oil and Gas Association case.

The case of Moore v. Commonwealth, Department of Environmental Resources, 129, Pa.Cmwlth. 628, 566 A.2d 905 (1989) involved a situation of interest. Moore claimed oil and gas ownership through a reservation in the chain of title to lands owned by the Department of Environmental Resources (DER). The facts and reasoning are not particularly useful here, as they were very case-specific. However, the holding is significant. Ultimately, Commonwealth Court found that Moore had title to the mineral estate (the case involved oil, gas and coal), but that the rights of ingress, egress had lapsed and were subject to reasonable regulations of DER. Thus, the court split the rights of production from the rights to the natural resource itself.

Of course this begs the question of what value oil and gas is if there are no production rights. In fact, it is the production rights which have any value at all. The industry itself recognizes this distinction and the importance of production rights as it relies heavily on leases of production rights, not outright purchase of oil and gas. There is case law calling leases sales, and the industry wants the public to believe that a lease carries rights forever. However, the contract itself, the intent of the parties, is what should govern. As we have examined, an outright sale of rights forever simply could not have been contemplated.

Courts also recognize this distinction and courts have implied production rights. The recent case of Belden and Blake v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (Pa. 2009), is just the latest incarnation. That case involved an alleged oil and gas owner and the attempt by the Department of Conservation and Natural Resources (DCNR) to impose rights by virtue of their status as a Commonwealth agency under the Environmental Amendment. The Court rejected these “superpowers” on the part of DCNR. However, the court also explicitly recognized that implied rights – the rights to produce – were limited to reasonable use. The Court also indicated that landowners could seek reasonable restrictions on use and could seek redress for unreasonable use.

What these cases show are courts grappling with questions of natural resources law and how to deal with those resources in the best interests of the Commonwealth. While industry wishes the courts to treat oil and gas as real property, the people can insist it be treated like what it is: energy. You can certainly feel the wind, but you cannot own it. You may, however lease your property for production of wind energy. The value is in the production rights. You can see, feel and even be burned by the sun. But you cannot own the sun or sunlight. You can however, lease your property for a solar farm. The value again is in the production rights. These production rights are not land or real property interests.

These questions seem esoteric, but as courts deal with natural resources issues in the next century, they will become more and more real. There will be questions who owns the ozone above the earth, the water below the earth, and even the radiation that may come from the earth. We can choose to treat these issues with the limited concepts of real property law, with its notions of ownership and try to decide who the lucky winners are. Or we can treat these with concepts of equity, as being a Commonwealth would suggest, and develop case law that suits the circumstances. Chartiers Block Coal Company, 152 Pa. 286, 25 A.597 (Pa. 1893), a case relied upon in Belden and Blake, foreshadowed this moment. They noted:

This is a new question, and one that is full of difficulty. The discovery of new sources of wealth, and the springing up of new industries which were never dreamed of half a century ago, sometimes present questions to which it is difficult to apply the law, as it has heretofore existed. It is the crowning merit of the common law, however, that it is not composed of ironclad rules, but may be modified to a reasonable extent to meet new questions as they arise. This may be called the ‘expansive property of the common law.’ Mining rights are peculiar, and exist from necessity, and the necessity must be recognized, and the rights of mine and land owners adjusted and protected accordingly.

Id., at 294, 295.

This is what it means to be a Commonwealth and to redefine the nature of government. What happens when the second wind farm gets in the way of the first? Oil and gas themselves should be utilized for the benefit of all citizens.  The interests that allow that development are more akin to personal property, and should be protected.  However, as a Commonwealth, for the good of all, we cannot permit the public benefit to be held hostage by a few.  Are all cases to be treated individually, or are we going to have an orderly development for the good of the Commonwealth as a whole? The system as it is set up favors those with money and those with influence. In a sense, those with something of value to lose.  I would suggest, that is true when it comes to the rights to exploit a natural resource.  However, when it comes to the natural resource itself, everyone stands to win or lose.  The people of the Commonwealth will need to use influence and strategy to plan appropriately. 

The Commonwealth's Environmental Amendment...

On May 18, 1971, Pennsylvania's voters by a four-to-one margin ratified what is now Article I, Section 27 of our state constitution-the Environmental Rights Amendment.

"The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

The Environmental Amendment should not be thought of a shield to protect the environment. Rather, the Environmental Amendment should be a weapon to fight those that would take the public's property interest in clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment. The Environmental Amendment should be at the forefront of a new post activist environmentalism. One which is not concerned with externalities and trying to protect what is at risk, but which is integral to the Commonwealth and public's ownership interests and which uses that property for the benefit of all the people.

The case law on the Environmental Amendment is sparse. The seminal case is Commonwealth v. National Gettysburg Battlefield Tower, Inc. There are actually two cases, one in Commonwealth Court and one in the Supreme Court of Pennsylvania. Read together, these provide a basis for what came next and why I advocate the Environmental Amendment has been looked at wrongly.

On April 3, 1973, the Commonwealth Court decided that the evidence in favor of constructing an observation tower to look over the Gettysburg battlefield sustained the finding that the construction of the tower would not violate the Environmental Amendment. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa. Cmwlth. 231, 302 A.2d 886 (1973). Of course, this is just the result, the important thing is the reasoning. Essentially, the court looked at the Commonwealth's interest as a Constitutional interest and balanced it against the private property interest of the company seeking to build the tower. The Commonwealth Court even noted the Commonwealth's power to exercise eminent domain. Of paramount importance throughout this discussion, the court also found the Environmental Amendment to be self-executing and that the Attorney General had standing to raise the Amendment on behalf of the Commonwealth as Trustee of the public's resources. It should be noted the dissents felt that the Environmental Amendment was, in essence, too vague to be self-executing. What is “clean air” or “pure water”? The dissents felt that further legislative or regulatory action was needed to implement the amendment.

On October 3, 1973, the Pennsylvania Supreme Court, by a split decision, affirmed the Commonwealth Court's decision, and implicitly the decision that the Environmental Amendment was self-executing. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973), reh. den. December 5, 1973. This decision was far from unanimous, nor without controversy. Further case law would prove that the decision whether or not the Environmental Amendment was self executing is essentially irrelevant.

On November 21, 1973, the Commonwealth Court decided the next, and possibly most important, case involving the Environmental Amendment, Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86 (1973) aff'd 468 PA 226, 361 A.2d 263, 6 Envtl. L. Rep. 20,796 (PA 1976). The case involved the widening of a street in the City of Wilkes-Barre. The Plaintiffs were not Commonwealth agencies, but rather citizens who felt that taking of the River Common would violate the Environmental Amendment. The court found standing and also reiterated that the Environmental Amendment was self executing. However, the court imposed a three prong test. First, the court is to examine whether there was compliance with all applicable statues and regulations relevant to the protection of the Commonwealth's natural resources. Essentially, this means the self executing nature is irrelevant, as the applicable statues and regulations will be the executory provisions. Second, the court is to determine whether the record demonstrates a reasonable effort to reduce the environmental incursion to a minimum. This means the courts have “reinterpreted” a self executing, substantive, right to clean air or pure water as a right to “reasonably clean” air, or “as pure water as one can get, given the circumstances. Finally, the third prong weighs whether the environmental harm outweighs the benefits to be derived. To be perfectly clear, the court did not say whose benefits those were, or how they were to be weighed.

Complaints are irrelevant. This is the test: was the law followed, is the harm minimized and do the perceived benefits to someone seem greater than the harm.

The Department of Transportation was allowed to widen the road, just like the tower was allowed to be built at Gettysburg.

The next cases involving the Environmental Amendment continued this trend. The first significant case were Community College of Delaware County v. Fox, et al., and Central Delaware County Authority v. Fox, et al., both reported at 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975). In these cases, several landowners were aggrieved by a local Township's actions with regard to sewage facilities. Essentially, the landowners tried to limit the sewer extension on the grounds that the long term development of the watershed would violate the Environmental Amendment. Of course, an attack on the Department of Environmental Resources decision to grant a permit under the Clean Streams Law and the Sewage Facilities Act is a somewhat collateral attack on the decision of the Township to build the sewer in the first place. Commonwealth Court lost no opportunity to rely on DER's scope of statutory authority and found the granting of the permits did not violate the Environmental Amendment because of the opportunity cost of open space or the cost to human health or happiness.

In Mignatti Construction Company v. Commonwealth of Pennsyvlania, Environmental Hearing Board, et al., and Township of Salford, et al. v. Commonwealth of Pennsyvlania, Department of Environmental Resources, reported at 49 Pa. Cmwlth. 497, 411 A.2d 860 (1980), the Commonwealth Court took an almost identical tack. The challenge was to an air quality permit under the Air Pollution Control Act. The Commonwealth Court followed the Payne test and reasoned that DER acted in accordance with law, minimized the impacts through conditions in the permit and (with no analysis) that the benefits of the quarry were substantial and outweighed the environmental harm that would result. Id., at 504, 864.

The take away is that the courts are not going to give teeth to this amendment in the face of administrative decision making. However, there is another take away. In both cases, the courts required compliance with the laws. Including, in some instances and manner, consideration of the economic impacts. The point is that one cannot use the Environmental Amendment to trump agency action, but one can possibly use it to influence that action.

Although totally different in terms of the type of case, the time in which it was decided and the lesson to be learned, the case of Einsig v. Pennsylvania Mines Corporation, 69 Pa. Cmwlth. 351, 452 A.2d 558 (1982) does have an instructive role to play. In Einsig, a coal owner brought an action to stop an oil and gas driller from drilling pursuant to a permit. The court decided the case on the basis of familiar principles of real property law. The only discussion of the Environmental Amendment was to compare the fact that DER's scope of responsibility to the public under the Environmental Amendment was different than its scope of responsibility as between the two competing natural resource producers. Again, the Environmental Amendment cannot be used to stop an administrative decision or action. It appears it can only be used to help influence that action in some way.

Turning from two private parties where the Environmental Amendment was only tangential, we now examine a case with two Commonwealth Agencies, where standing, as opposed to the applicability of the Amendment took center stage. In Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, Ganzer Sand & Gravel, Inc. and Hammermill Company, 97 Pa.Cmwlth. 78, 509 A.2d 877 (1986) the Commonwealth Court was faced squarely with the issue of what agency would represent the Commonwealth in determining whether the Environmental Amendment had been met. Ganzer Sand & Gravel desired to allow a waste fill site on Ganzer's property near a State Game Lands known as No. 218 – Siegel Marsh. The Game Commission feared a degradation of the environment and filed an appeal with the Environmental Hearing Board raising issues under the Dam Safety and Encroachment Act (DSEA). Commonwealth Court gave great deference to DER and specifically noted that, for purposes of the DSEA, DER was the agency that was to look out for wildlife, not the Game Commission. The Court followed the Payne v. Kassab three prong test. They found the law had been properly followed by DER and that no substantial issue had been raised under the second or third prongs.

On appeal to the Pennsylvania Supreme Court, that Court held that the Game Commission had standing to challenge the permit on the basis of the Dam Safety and Encroachment Act but thereby avoided addressing the impact of the environmental amendment, Commonwealth, Pennsylvania Game Commission v. Department of Environmental Resources, (Supreme) 521 Pa. 121, 555 A. 2d 812 (1988). Justice Larsen did take the opportunity in his concurring opinion, in which Justice Papadakos joined to point out:

“As one of this Commonwealth’s trustees of our natural resources and the public estate under Article I, section 27 of our Constitution, the Commission must have standing to take whatever legal action is necessary and appropriate to “conserve and maintain” our “clean air, pure water,” and “the natural, scenic, historic and esthetic values of the environment where threats to game or wildlife and to waterways and lands acquired and managed by the Commission arise. Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, (Supreme), supra, page 131.”

Thus, although there was some judicial recognition that the Game Commission is a trustee of resources under the environmental amendment, the recognition has been less than decisive.

This is instructive on two counts. First, as to what type of evidence must be presented. It is not enough to allege a damage to a bird, a plant or a viewshed. One must prove by clear and convincing evidence that a recognized right is economically damaged and that such damage outweighs the benefit of the proposed action. Second, it is clear that the burden is heavy. A private right should not be weighed against a private right pursuant to Einsig, supra., and a public's right as a public interest is not a traditional property right such as is capable of quantification.

Lest there be any doubt whether these conclusions make sense, read Belden & Blake Corporation v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (2009). In that case the Supreme Court was virtually incredulous that DCNR had the temerity to claim a special status for the public under the Environmental Amendment. The analysis was limited to whether Belden and Blake met its statutory (NOT constitutional) obligations and whether Belden & Blake tried to minimize its damage caused by the exercise of its property rights. The third prong of Payne: whether the damage outweighed the benefits, was virtually ignored under the guise of protecting private property rights. Essentially, a government agency stands in no better position than any other citizen.

The most recent instruction on the Environmental Amendment and its use came in 2012. In the case of Robinson Township et al, v. Commonwealth, Public Utility Commission, et al., 52 A.3d 463, the Commonwealth Court had occasion to review the constitutionality of “Act 13”, 58 Pa.C.S. 2301-3504. Act 13 repealed Pennsylvania's Oil and Gas Act and replaced it with a comprehensive code. Specifically, Act 13 preempted local regulations, including environmental laws and most zoning provisions. The Plaintiffs raised a myriad of constitutional challenges. One of these was Article I, Section 27 of the Pennsylvania Constitution – the Environmental Amendment. The Supreme Court deemed this a justiciable question. They specifically rejected the Commonwealth's reasoning that the Legislature was to make policy determinations such as whether zoning (a General Assembly created creature under the Municipalities' Planning Code) should be preempted. The Court specifically found municipalities had standing to raise the issue. However, when actually addressing Article 1, Section 27, the Supreme Court gave great deference to the General Assembly's decisions as to how to develop oil and gas, specifically Marcellus and other shale oils and gases. The express statutory language prohibiting local regulation was found to settle the question and to vest the authority for Article I, Section 27 in the Department of Environmental Protection.

So much for being self executing.

However, this also points out the avenue of attack. A plaintiff cannot expect to raise the Environmental Amendment against DEP and receive deference. However, a plaintiff can use the Environmental Amendment to force DEP to create an administrative record. Such a record can take time and can be used to indicate where proposed permittees may make accomodations. The record can also be used to appeal to the Environmental Hearing Board to show violations of DEP mandates in its own regulations. While this has proven difficult in the past, several times cases turned not on the facts, but the absence of evidence. Practitioners must make every effort to show damages. The evidence cannot be replete with references to plants and animals which everyone knows will suffer some harm by development. To be successful, a record needs to reflect that other property rights, on balance, will suffer more harm than the alleged benefit of the proposed action to be permitted. This means involvement early on in a case of expert economists, business and industry officials, as well as a frank appraisal of whether a plaintiff has a justiciable claim or simply has a bias against the project. To be successful, no such litigation will be inexpensive.

Quite simply, the Environmental Amendment will not shield the environment from damage. However, it can be used as a sword to force administrative agencies, most notably DEP, to consider valuable interests of other persons when making permitting decisions. The proof of these interests and damages to them will be key.

A New Relationship Between People, their Government and the Environment...

This blog started from the premise that a Commonwealth should serve the "common wealth".  Subsequent posts detailed areas where the Commonwealth does, indeed, protect its citizens.  An example is where landowners are protected from liability from allowing others to use their land for recreation.  In return, the Commonwealth furthers the interests of the public and natural resource management by promoting the use of land for recreation and allowing resource management such as hunting, furtaking and fishing.

However, in other cases, the Commonwealth has schizophrenically failed to decipher what interest is the most important.  Is it development, or open space?  Is it public or private interests? Do we allow private use of private property under the ruse that development is good, or do we require something more than an assumption that growth is good?

Finally, the posts and musings of this blog have examined the larger key concept of the Public Trust, although in a federal government versus state government vein and specifically with the subject of wildlife.

The point is, it is time the citizens of Pennsylvania - the Commonwealth of Pennsylvania - stop acting like natural resources are unlimited.  It is high time to demand the Commonwealth not allow private interests to strip the Commonwealth's citizens of their "common wealth" and send it to other states and countries for the sole purpose of making and concentrating more wealth in other states and countries.  In essence, the Commonwealth is being treated as a third world country.

This was not always the case.  Pennsylvania's iron furnaces supplied the revolution and its farms fed the populace.  Oil and gas were discovered in Pennsylvania and was first used here to light street lights and heat homes. Although cheap production and abundant supply moved this industry away for a hundred years, it has returned with a vengeance on a citizenry and government woefully unprepared to handle it.  One of the best research facilities in the world on nuclear power exists in the Commonwealth.  Our mountains are covered with wind, we have as many sunny days as cloudy days and we have recognized the value of open space and timber and protected both for our people.

This blog will continue dicussing Pennsylvania's unique relationships with the environment and with companies and persons doing business in the Commonwealth.  It will not attempt to definitively answer the questions about how we as Pennsylvanians want to connect with these issues, but will try to point out where these issues are ripe for discussion and debate.  The goal is to foster this debate and have us form a new environmental consciousness that promotes the "common wealth".

The Public Trust Doctrine...

The public trust doctrine and wildlife resources may seem a special interest topic. However, the story is a well documented one and will serve to illustrate the principles of the Public Trust Doctrine. Just as importantly, these lessons can be applied to all resources in the Commonwealth. In any new paradigm of dealing with environmental issues, local control of the Public Trust will be key to protecting the common interests.

When the first European colonists arrived in Pennsylvania, they found a land teaming with natural resources, including abundant populations of fish, game and wildlife. By the late 1880’s, however a very different situation existed. Most of the timber was being cut and removed from Pennsylvania’s mountains. Pennsylvania's streams and rivers were polluted. Populations of most species of fish, game and wildlife had been decimated by essentially unrestrained hunting and fishing resulting from weak, poorly enforced hunting and fishing laws. Pennsylvania was rapidly becoming a wasteland.

Sportsmen started lobbying for agencies that could safeguard fish and wildlife, improve populations, and enforce fishing, hunting and trapping laws. The sportsmen’s efforts eventually bore fruit in the form of the appointment of a Commissioner of Fisheries, predecessor to the Pennsylvania Fish and Boat Commission, in 1866 and of the Board of Game Commissioners, predecessor to the Pennsylvania Game Commission in 1895. Nonetheless, it took a long time for the agencies to get established. For example, it was nearly a year and one half before a Board of Game Commissioners was appointed and two years before it had any money appropriated to spend, and that was just for postage.

The Pennsylvania Fish and Boat Code, 30 Pa. C. S. §101 et seq. and Game and Wildlife Code, 34Pa. C. S. §101 et seq. are the latest in a series of statutes designed to preserve and protect fish, game and wildlife resources while providing maximum recreational opportunity. As a result of the dedicated efforts of countless commissioners, law enforcement officers, and support staff, abundant populations of fish, game, and wildlife have been restored to Pennsylvania. Over a million hunters annually are given numerous opportunities to hunt game and trap furbearers. This has been termed the fourth largest army in the world. Nearly 900,000 anglers annually have the opportunity to fish Pennsylvania’s beautiful lakes, rivers, and streams. Approximately 1.4 million acres of land have been set-aside as wildlife habitat to be used by all for the enjoyment of nature and wildlife.

Taking a step back to see how the Commonwealth's laws evolved, we need to go as far back as early English law. Early wildlife laws in the United States were the legacy of early English law, which had four goals:

a. Sustainability of wildlife harvests.

b. Regulation of human behavior in using weapons.

c. Favor the classes with wealth.

d. Preserve the right of wildlife to exist.

As mentioned, the initial abundant populations of wildlife and the simple need of survival in the New World, combined with the difficulty in enforcing hunting and fishing laws, led to decimation of numerous species of wildlife. The loss of wildlife led in turn to a decision that government should control the taking of fish, game, and wildlife.

The power of the states to control the taking of fish and wildlife was most strongly supported by the U. S. Supreme Court in Geer v. State of Connecticut, 161 U. S. 519 (1896). The Court held that the State of Connecticut literally owned the fish and wildlife of the state such that it could adopt statutes prohibiting possession of birds taken within the state for the purpose of transporting them out of state without violating the Commerce Clause of the U. S. Constitution. This concept of literal ownership of fish and wildlife resources by the states prevailed for nearly one hundred years when the U. S. Supreme Court decided three cases during the period 1977-1979 which greatly clarified the powers of the states with respect to the U. S. Constitution.

In 1977, the Court decided Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), which dealt primarily with the issue of whether Virginia could prohibit federally licensed fishing vessels owned by nonresidents of Virginia from fishing in Chesapeake Bay. Although the case was decided on the basis of preemption, Justice Marshall, quoting Justice Field, dissenting in Geer v. Connecticut, supra: “A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, bird or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture, Douglas v. Seacoast Products, Inc., supra, p. 284.

In 1978, the U. S. Supreme Court decided Baldwin v. Fish and Game Commission of Montana, 436 U. S. 371 (1978).Lester Baldwin, a resident of Montana and a licensed hunting guide, and others challenged Montana’s statutory elk-hunting scheme which imposed substantially higher (7.5 times) license fees on non-residents(vs. residents) and required nonresidents to purchase a “combination license” as violating the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution. The Appellants argued that the doctrine of state “ownership” had “no remaining vitality.” Justice Blackman, speaking for the majority, disagreed, pointing to Douglas v. Seacoast Products, Inc., supra, and emphasizing “the importance to its people that a State have power to preserve and regulate the exploitation of an important resource,” Baldwin v. Fish and Game Commission of Montana, supra at p. 386. The Court held that although Montana’s greater requirements imposed on non-residents did not violate the Privileges and Immunities and Equal Protection Clause, state power to regulate fish and wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests. Thus under Baldwin v. Fish and Game Commission of Montana, supra, states have great latitude in determining what means are appropriate for protecting fish and wildlife provided constitutional requirements are met.

The final case decided by the U. S. Supreme Court in the series of three relating to fish and wildlife was Hughes v. Oklahoma, 441 U. S. 322 (1979). This was another Commerce Clause challenge, this time to an Oklahoma statute that prohibited transporting or shipping outside the state for sale natural minnows seined or procured from waters within the state. The majority held that the facts of this case were essentially on all fours with Geer v. Connecticut, supra, and specifically overruled the literal ownership language of Geer v. Connecticut,supra, along with the anomaly that statutes imposing the most extreme burdens on interstate commerce were the most immune from challenge. The Supreme Court in Hughes v. Oklahoma, supra, did not eliminate the states’ interests in conservation and protection of wild animals but “narrowed” the interests by acknowledging that they are limited by commerce clause considerations.

With the overruling of the literal ownership concept of Geer and the U. S. Supreme Court’s holding that state power to protect and conserve fish and wildlife was subject to Commerce Clause limitations there were no major developments in the Federal Courts with regard to the public trust until 2002. In that year, the Ninth Circuit court of Appeals Conservation Force, Inc. v. Manning, 301 F. 3d 985 (2002), which involved a Commerce Clause challenge by professional hunters and guides to a 10% cap placed by Arizona on tags to hunt bull elk throughout the state and antlered deer north of the Colorado River in Arizona that could be issued to non-residents. The Ninth Circuit held that since Arizona permitted the sale of non-edible parts by successful hunters, the cap does violate the dormant Commerce Clause and as a result, Arizona’s caps were subject to strict scrutiny. The Federal District Court ultimately held that the restrictions on non-residents were invalid because they violated the Commerce Clause. The U. S. Supreme Court did not grant certiorari in this matter.

The next year, the District Court in Wyoming reached a different conclusion. Schutz v. State of Wyoming, (U. S. District Court in Wyoming, 2003). Finding the Conservation Force reasoning “flawed”, Judge Downes rejected challenges by the Plaintiff to limitations on big game permits that could be issued to non-residents. The Court rejected equal protection and commerce clause challenges. Hunting was not a fundamental right and all that was required was a rational basis to survive an Equal Protection challenge. Noting that residents were being rewarded for being residents, and presumably paying taxes supporting the state and by implication the state’s wildlife, the Court found that the resident preference had a rational basis to serve a legitimate state interest. The commerce clause challenge was likewise rejected, largely on the basis that hunting was merely recreational and the Plaintiff’s alleged economic loss of not being able to sell a trophy big horn sheep on Ebay was too remote to implicate interstate commerce. On appeal to the Tenth Circuit, the Tenth Circuit affirmed the District Court’s decision. Schutz v. Thorne, 415 F.3d 1128, 35 Envtl. L. Rep. 20, 146(10^th Cir. (Wyo.) Jul 11, 2005). The one added wrinkle was that Congress passed the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, (House Bill 1268), which provided in Section 6063(b)(2) (known as the “Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005”) that it was the policy of Congress to allow each State to continue to regulate taking of fish and wildlife within its border, most significantly, by laws or regulations making licenses available to residents and nonresidents on differing bases. The Supreme Court denied certiorari.

Having survived a motion to dismiss for standing in State of Minnesota v. John Hoeven, et. al. 331 F. Supp.2d 1074 (U. S. District Court, District of North Dakota, Southwestern Division, 2004) the Plaintiff found itself on the losing end of a decision on the merits in State of Minnesota v. Hoeven, et al., 370 F.Supp.2d 960 (U.S. District Court, District of North Dakota, Southwestern Division, 2005). In Hoeven, the Court rejected the Privileges and Immunities challenge based on the fact that hunting was not a fundamental right such as was basic to the maintenance and preservation of the Union. This decision relied heavily on the Baldwin decision. The Hoeven decision also rejected the Commerce Clause challenge, finding that non-resident hunters did not have a direct and clear nexus to interstate commerce and that access to waterfowl hunting was purely recreational such that the activity itself did not substantially affect interstate commerce. On appeal to the Eighth Circuit, the case was affirmed. State of Minnesota v. Hoeven, 456 F.3d 826 (8^th Cir. (N.D.) Aug 03, 2006). The Eighth Circuit also noted the passage of the “Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005” mentioned above.

Finally, in George Taulman v. Mike Hayden, Secretary of the Kansas Department of Wildlife, Nor reported in F.Supp.2d, 2006 WL 2631914 (U.S. District Court, Kansas, No. 05-1118-WEB, 2006), the District Court granted summary judgment to the Defendant finding that the privileges and immunities clause was not violated by denying non-residents the same rights to hunt as residents.

In summary, in 2005 Congress passed the “Reaffirmation of State Regulating of Resident and Non-resident Hunting and Fishing Act of 2005,” Pub.L. No. 109-13, §6036, 119 Stat. 231 (2005). While not binding on the judiciary, it evidences Congress’ intent to renounce any federal interest under the Commerce Clause in regulating hunting and fishing. It is likely such challenges will be fewer in the future based on the case law and the obvious legislative intent.

Essentially, in the field of wildlife, we have a situation in which the individual states and commonwealths are recognized as the trustee of the public resources or wildlife. This was a long fought battle, not finally decided even now, but brought to its conclusion by an act of Congress.

However the Commonwealth of Pennsylvania, like many other states, never wavered from its public duty. When the people of Pennsylvania adopted Article I, Section 27( the environmental amendment) of the Pennsylvania Constitution, on May 18, 197l, they formally recognized the public trust doctrine. The environmental amendment reads as follows:

The people have a right to clean air, pure water, and to the preservation of the natural scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Although this Constitutional provision seems fairly clear, particularly in light of the U. S. Supreme Court decisions previously reviewed, there do not appear to be any reported decisions in Pennsylvania which unequivocally say that fish and wildlife are included in the public natural resources intended to be protected by the environmental amendment.

The Commonwealth's Environmental Amendment is a subject for another day. But a knowledge that the Public Trust Doctrine has a long history is important. Also important is to know that during this history, other competing interests have been weighed against the public interest in natural resources and that local control of the natural resources have not always fared so well. The fact is, that power to control natural resources had slowly been being gathered by the federal government. It took an act of Congress to return the public trust to the states. I would suggest this is a trend we will see in other natural resource areas as well. The questions whether the federal government can be held accountable under the same Public Trust principles, whether the States can wrest Public Trust responsibilities from the federal government, or whether the Public Trust Doctrine will be thrown away completely.