[MUSIC] Hi and welcome to week two of Environmental Law and Policy. A week in which we're going to introduce ourselves to the law of property. A body of law that's important in its own right and it's quite important to the study and understanding of environmental law. In a few minutes I'm going to tell us a story and we're going to play a game, involving property, before we look at the cases I asked you to read for today. But before we do even those two things, the game and the story, I want to give us a little bit of orientation to how important property law is considered Through the lines of other bodies of law. For example, in the United States Constitution, in the 5th and 14th Amendments, the so-called Due Process Clause. The drafter of the constitution made it clear that our government cannot deprive anyone of life, liberty or property without due process of law. Put another way, property was one of those things that are so important to free people that they needed protection from the state and were given some in the due process clause. Due process of course means procedural due process. The government has to go through certain steps before it deprives us of any of those three things. But there's also an element of substantive due process. That there might be some governmental intrusion into these interests so severe that in its own right it needs to be struck down. Yet last week when we looked at the village of Euclid zoning case the court rejected the argument that property rights are so absolute. That they cannot be constrained by the greater power of a local government to adopt zoning rules for the public good. So property rights are not absolute and never have been. When people refer to things like God given property rights or natural law giving property rights, at least in the US system, that is incorrect and always has been. In fact the Supreme Court, in yet other cases, has made it very clear, that the constitution and natural law do not give any rights to property. Property is entirely a matter of positive law. Meaning to say, the statues and contracts and arrangements that people make it doesn't come from any other source. And of course you and I know that there's all different types of property rights. There are so called real property rights which is the right to real property such as land or buildings. There is personal property rights which is the rights to things that we own like the cash in our pockets or our clothes or bicycles or our cars. There's even intellectual property of which we're all aware so if you write a book or a song you get a copyright protection on it. You own that interest in your intellectual property. So to if you invent something and it's protected by a patent. Whenever you have property rights there are a variety of benefits that one gets with them. So-called sticks in a bundle of sticks the property owners have for example, you might have the right to exclude others, say, from your land. The right to sell, the right to use, and so on. That in a nutshell is what property law is all about. Let's play the game and let me tell you a story to situate property a little bit more, in particular as we introduce its relationship to environmental law. Here's the game. I'm going to call this the devil's game. And we're going to play other types of devil's game throughout this course, but here's the devil's game this time. And its point is to illustrate to ourselves how important we think property might be. Here's the game. On the one hand I will convict you of a crime, a felony, an important crime, for which you will spend one year in jail. To be honest, I'll make it a safe jail. You'll not be, for example, sexually abused when you're in jail. But it will be awful being in jail. You'll be separated from everybody else, but you will be safe. You will come out, however, not only having given up a year of your life in jail, but you'll have all the stigma that comes with having been a convicted fellor. You may not be able to vote, it might be hard to get jobs and so on. Put another way, your liberty, which means your ability just to write your own life story in this world, will be severely affected by what happens to you being convicted of a crime. That's on the one hand. Here's the rest of the deal. When you get out I will give you $10 million, US dollars, tax free for you. Here's my question. How many of you might, I'll only ask you whether you might, consider taking the deal? Tell me whether or not you might consider taking the deal, if not definitely say no. Usually when I pose this question to students, the overwhelming number of students raise their hands and say yes, they would consider the deal. To which I have two observations. Number one, I could make fun and say, well that establishes it. You're all prostitutes. You'd be willing to sell something secret like liberty, for mere money. On the other hand, assuming this is a common reaction that we might consider it It helps underscore the importance of property. It's not just things. The reason I suspect so many people might take the deal, is we realize how much different our lives would be with, say $10 million. We'd be able to help our friends and our families in ways that we couldn't otherwise. And that itself has elements of personhood in it. Even elements of liberty. The point of the story is, if you answered that you might take the deal. No matter how you might think about property in the abstract otherwise. We really do realize how important it is. And environmental law has to grapple with this almost universal understanding. Here's the story. The story comes from Homer's Odyssey. And you might remember in Homer's Odyssey. It is the story of Odysseus a Greek hero and his return to his home country in Ethica from the Trojan Wars. And terrible things happen to him and his men on route back from the wars. To his island of Ithaca. When he gets there however, and he wants to be re-joined with his wife, Penelope, he's distressed to learn that she has been besieged by suitors during his absence. Who have been telling her that Odysseus is dead and that she should marry one of them and she has held off the suitors. Well, part of the odysssey when he gets back is how he deals with the suitors. And plotting with his son, Telemachus, there's a lot of the Odyssey that is devoted to Odysseus getting revenge and killing every one of those suitors. That's not the point of my story. Here's the point of my story. When he's done killing the suitors. He turns to the handmaidens. The handmaidens who had attended Penelope during the long year of Odyssey's absence. And while there's a little bit of dialogue about the possibility that some of those handmaidens may have spied for the suitors on Penelope. Some of them may have slept with the suitors. There's not a lot of bad things about the handmaidens that were told. But none the less, after he's done murdering the suitors, Odysseus hangs many of the hand maidens, just hangs them. More importantly, Homer, the author of the Odyssey, doesn't spend a lot of time on this hanging. And that is the taking off point from my story. I'm not the only one to have this insight, but the little time that Homer spent on the handmaidens reflects the fact that really they didn't count. They were incidental, almost like props. To be used merely to illustrate, Adissius' greatness, his kingliness under the norms of the time. He was so powerful that he would just simply get rid of and kill something like the handmaidens, because they may have been some indirect way offended his sense of nobility and proper behavior. The handmaidens didn't count. A lot of the great struggles in the law over the centuries have been the claims from other types of people or entities to count in the law. And we know this is the case. There was a time when slavery was a well-established property system and slaves were not thought of as people, they were thought of as property. In that sense, they didn't count. Women too, then and now, were often given second class status because they didn't count. And some of the great struggles in all law were to change this aspect of property and make it bend to bigger norms of liberty. And norms of rightness. And so to with the environment. One of the big theories in environmental law. Is that it's trying to make the environment count in its own right. And that's one of the great struggles in envirnomental law. And the question is if we try to estimate claims for the environment, and the environment should count, how will this affect the law of property? That's it, let's look at two opening cases I had us look, both involving water rights and both from California in different centuries. Water and rights to water are a type of property right that people plainly can have. And that was always true. It was true in England under the common law of England, and it came with the English colonists to the United States. And in the eastern part of the United States there were certain rights known as riparian water rights with land, which land homers, owners who owned land appurtenant, adjacent to bodies of water had to the use of that water. In Irwin versus Phillips, the California Supreme Court tried to decide what the law of water rights should be as a property right system in California. The one thing you need to appreciate is that California is in the western United States, and the western United States is arid. Unlike the more effluvial, wet, eastern United States. At issue in Irwin was gold mining. And California, of course, was famous for gold mining. In the 19th century gold was discovered in the Sierra mountains in California and there was a fantastic gold rush to exploit these resources. One thing that's not appreciated is that water played a huge role in gold mining. And what miners at the time frequently did is divert a stream over long canals. And then build up pressure and put it through hoses to blast hillsides to get at the gold underneath the hillsides. Here are some pictures of hydraulic mining. Hydraulic mining, by the way, was terrible, environmentally, however great it was as a mining technique. And you can see scars of hydraulic mining in the Sierra mountains even today in the Sierra Nevada mountains in California. The question was however, to what extent would the law recognize property rights to water by these miners often miles away from the streams from which their water was diverted? Especially when facing a challenge when someone owned land appurtenant or adjacent to the stream. And didn't water to be taken away because it would reduce the flow available to that property owner. The riparian property owner. In Irwin versus. Phillips, the court rejected. The doctrine of riparian water rights which had been adopted in most of the eastern United States and said that just doesn't fit the modern day realities in California. And in particular it doesn't fit the states' interest in gold mining. More generally the court made it very clear. That when deciding property rights like this, a court has to mindful of overarching social and economic conditions. And having found that the government of California wanted to encourage mining, the court adopted a body of water rights known as the prior appropriation doctrine. Which meant anyone who took the water first, had a superior water right to it. Even to somebody who owned land adjacent to the stream. First in time, first in right is a quick shorthand way to understand water rights and property rights to water in the western United States. And it was in Irwin versus Phillips That the California Supreme Court recognize that this type of property right to water. Fast forward over a century later in the Audubon Society case, National Audubon Society versus Los Angeles Department of Water and Power. The California Supreme Court again had to consider water rights. At this point, the gold rush was over, California was well developed into one of the most developed states, economically, in the entire United States. And it has turned out that water, rather than gold, turned out to be the enduring precious resource in California. Nonetheless Los Angeles, a large, growing city with almost voracious, famous appetite for water, had acquired water rights to five streams that fed a lake near the Sierra Nevada mountains, Mono Lake. And the Department of Water and Power in Los Angeles Clearly had water rights to appropriate all of the water in those streams and divert that water through canals down to Los Angeles, for use there by Los Angelinos. By the way I was born in Los Angeles. In this case, the court recognized that the interest of the water user in this case, Los Angeles was legitimate. And in fact California needs to move water around being a very arid area. But on the other hand, the court recognized that rights to water were overlain with something known as a public trust interest. Which is that the State has claims to the water and to create property rights to this water subject to its overriding interest to consider broader public goods and environmental aspects of the water. That's not necessarily to say that one always or even ever trumps the other. But the court head in National Audobon Society that before water rights are given to completely appropriate streams. Just causing environmental calamities. Not just to those streams but to the mono lake that it would feed. The California Water Resources Board needed to consider the public trust including the environmental aspects on water rights. On [INAUDIBLE] by the way. Back to the California Water Board. The California Water Board decided not to allow the continued diversion and Los Angeles got its water elsewhere, and those streams continued to support their own environment, their aquatic environment. And to feed Mono lake, it was the case that was heralded as that which saved Mono lake. This unusual and rich ecological treasure, at the foothills of the Sierra Nevada mountain. The point for our purposes though is that over a hundred years after Erwin, the court once again noted That property rights need to mindful by overarching societal obligations, in this case reflected in the public trust doctrine. Although at this time environmental interests had become central. Next time let's look at some of the provisions of the US constitution and how they interact. With governmental decisions to affect property rights, to preserve environmental amenities. I'll see you then. [MUSIC]
