When the city "owns" part of your house...

I'll admit that the title of this post is a little bit misleading, but bear with me. One of my neighbors recently finished doing some work on updating his home to make it more livable and more energy efficient. He and his wife (and two children) were able to take advantage of a city program to rehabilitate and improve property owned by lower income families and individuals for things like energy efficiency, accessibility, and habitability. Using this program they were able to get a 0% interest loan (payable on sale or transfer and forgiven after 30 years of occupancy) to improve their basement into living space and blow insulation into their walls. This is a fantastic program by the city to find a way to improve the housing stock of the city, improve the living conditions of people who probably can't afford to update in even basic and worthwhile ways like this, and create incentives for residents to stay in an area, stabilizing neighborhoods. Those are all positive community outcomes. Who could object to better housing stock, more stable neighborhoods and communities, local reinvestment, and improved quality of life for those with lesser means. To me this sounds like a good piece of public policy for the city: relatively affordable, easy to administer, and with high impact on affected properties. 

Enough background. While the city technically has a lien on his house now, as the holder of the secured loan attached to his property, that's not where I was going with this post. That's a standard mortgage/secured transaction issue and not particularly strange or worth commenting on. What was most notable about his improvement process was what he discovered during the permitting process for some of the interior work, especially electrical work, that was required. In Minnesota, there are several kinds of roads, each of which has its own way of being created and required size. The road in question here is a platted town road, specifically McKnight Road. A platted road is a road that has been recorded on a development plat and dedicated to the city or town for public use. It is also given a 66 foot easement (four rods), even though the paved surface of the road may (and likely does) take up far less space. This is to prevent the road from being obstructed, keep view lines clear, facilitate public access, and provide for maintenance strips. These rights of way are usually surveyed precisely based on the Public Land Survey System and recorded with the appropriate state or county office. And here is where the problem came in. Upon first glance, his house looks like almost any other house in the area. It is a similar style, size, and layout. It is situated in a similar place on its lot. But similar is the key.

When the addition that I live in was built in the 1960s, the houses were all variations on a few patterns and the streets were laid out in a similar way. It was all very organized and predictable. Except for my neighbor's house. When they sited his house, they made an error. It isn't noticeable at first, but if you know to look, you can see that it is clearly a few feet closer to McKnight than any other house. Literally all the other houses are set back a few extra feet. This is incredibly important, because those few extra feet put part of his garage, part of two bedrooms, and a tree in the right of way for McKnight. It's still his property, but it is subject to a road easement. This was discovered during the electrical permitting process and was quite a challenge. Few electricians wanted to do any work on a house that was, while privately owned, partially located on a city property interest (an easement is an interest in property, he still owns the land and house, but it is "encumbered" by the rights the city has to maintain the road). It also made it challenging to get a permit, because the city technically had to consent to allowing at least some of the work. Needless to say, it was a bureaucratic nightmare. I don't know how long it took, but they did eventually get a permit, the work was done and inspected, and his house is now much nicer, but it was far more trouble than it should have been. All because someone was a few feet careless fifty years ago.

City easements on private land can also have positive outcomes. The most noticeable of these is seen in the urban forestry departments of most major cities and their planting and maintenance of boulevard trees (those trees, located in the street right of way, in the grassy strip between the sidewalk and the pavement). The land might technically belong to the homeowner (sometimes it doesn't, though there's still a duty to shovel and mow), but the tree is usually city property. Cities are also very particular about what kinds of trees they want to plant, where they would like to plant them, and what size, shape, type, and distribution they are hoping to accomplish. They also concern themselves with creating particular aesthetics in a neighborhood with certain trees, removing trees that are subject to disease, planting trees that thrive in urban environments, and considering things like "messiness" that might accompany fruiting trees or sap shedders. They often come up with comprehensive plans that document strategies, objectives, and schedules that the public can use to understand the system and make requests. All of this to help administer the city's property that might be located on your land.

Farmland and Conservation

In much of the country, including here in Minnesota, farming is a major economic activity. It is also a  major source of water pollution in the form of nutrient and sediment runoff as well as pesticide contamination. While farming is necessary to feed a nation, and large scale farming is generally more efficient at producing food than small scale production (as is the case with most industrial enterprises), the way it is often undertaken in this country, and in particular the way that it is practiced in the Midwest, South, and California, is highly problematic from environmental, nutritional, and economic perspectives.

The way one usually thinks about farming might go something like this: a farmer owns (or rents) some land, looks at what it can support and what crops or products (meat, eggs, milk, etc.) are in demand in the local or regional market, and then decides what to plant or grow. However, in this country we, with a few exceptions (see New England dairy farmers for example), have a very different system that is much more similar to industrial factories than to small family farms. Many are owned or operated by large land holders or corporations, and instead of producing a variety of crops, tend to produce one or two cash crops, often the big five (corn, soy, wheat, rice, cotton). Not surprisingly, there are subsidies involved, and they often provide the biggest benefit to the "farmers" that are already the largest and most profitable. It really creates a system of perverse incentives where marginal land is put into "production" just so that it can be counted as acreage for subsidy calculation, even if it is inappropriate for planting for ecological, hydrological, soil quality, or nutrient resources reasons. Needless to say, this is often disastrous for the environment, contributes to overproduction of empty calories in our food system, and reduces biological diversity from both habitat loss and the over-use of pesticides.

There is hope, however, at least at the margins. Some organizations are working to change farming practices voluntarily. The US Department of Agriculture works with land grant universities to develop research on agricultural practices, agrinomics, and other best practices that can be shared with farmers to help them learn better, scientifically backed ways of maintaining or improving farm production. Other organizations work to provide economic support or incentives for farmers to switch from traditional "because that's the way my grandfather did it" agricultural practices, some of which are counterproductive and many of which, such as fall application of fertilizer with no cover crop, are both counterproductive (and expensive/wasteful) and environmentally harmful. Falling crop prices have also caused some farmers to take marginal land that they had pulled from the program out of production and re-enroll it in the Conservation Reserve Program, a federally funded system of payments that compensates farmers on a sliding scale for not planting on land. The more productive the land, the higher the payments from the government. This provides an incentive for farmers to set aside areas for wildlife, grasses, trees, and flowers which improves habitat (including pollinator habitat) and provides the valuable ecosystem service of runoff filtration and sediment capture before it reaches waterways. While it is not a large program, it is very successful and has a long history of inducing farmers to set aside at least some lands for non-agricultural purposes. However, unlike a conservation easement, which becomes permanent once created, the program is voluntary and lands can be removed as grain prices change and farmers see more profit to be gained from planting again.

What else can be done besides imposing conservation easements, permanently buying land, making it harder to opt out of the CRP, or providing education on best practices and hoping farmers follow it? In Minnesota, one answer has been to use the state's police power and duty to regulate/provide clean water to create a statewide standard for agricultural buffer zones around bodies of water. The idea is that within a certain distance (50 feet) of public waterways, it will be illegal to plant crops or have other agricultural surface use that is not perennial cover (hay is acceptable). This program builds on existing state restrictions on agricultural property use, but creates a more uniform and enforceable standard and program that can be administered at either the local or state level (if the county is not doing what it is required to do). While this is a more direct control of private land than the education and incentive based methods discussed above, it is also far more wide-reaching and will likely have a substantial impact on the state's water quality and riparian habitat. Many farmers were already complying with these requirements, either by enforcement or because it was not worthwhile to produce on marginal, often wet (if not wetlands) land. This program will provide a way to ensure that the rest will come up to speed as well. While the actual buffer map  has not yet been produced, the theoretical area to be covered will be quite extensive and might result in substantial improvements, especially in the heavily agricultural southwest portion of the state.

There has been one hitch, so far, in the implementation process for the standardized buffer requirement: while the 16 foot requirement for land bordering public ditches is currently under development, the process of assessing equivalent buffers for private ditches has been put on hold after some legislative hostage taking by the GOP in the state legislature. It had supported the initial creation of the program as part of a deal last spring, but is now claiming that this is beyond what was conceived and has threatened various public works projects if it is not stopped. While this is unfortunate, it might be resolved in the future with some deal making or, more likely, with the seating of a new legislature that does not include an obstructionist majority after the next election. At least the argument here is over whether the statute authorizes private ditch buffers and is not focused on the frivolous claim that the state can't regulate behavior on private land that affects public water ways. Under the federal Clean Water Act, Minnesota has a duty to ensure that its waters meet various usability, health, and safety requirements, and under its plenary police power, it has the ability to regulate conduct, including private conduct on private land, to see that its policies are followed and its interests furthered in support of the common good.

I don't know how well, the buffer zone project will work or what the ultimate effect will be (it's possible that it will be minimal if much land was already in compliance, or substantial if not). I suspect that there will be significant regional differences in impact, with heavily agricultural areas seeing the most improvement in water quality, but with some improvements seen throughout the state. I also hope, and am hopeful, that taking some areas out of production will lead to a rebound in birds and pollinator species that are currently struggling. That, however, is a bigger problem that this is only a small piece of. Increased riparian habitat will help, but food access and pesticide use will continue to present challenges. One step at a time, however. And this is a good one.

Roadless Rules Upheld

A panel of the Tenth Circuit has upheld (unanimously) the Forest Service's Clinton era roadless rule against a challenge by the state of Wyoming. The decision is here (but be warned that it is 120 pages long). This is a pretty big deal and a big win for conservationists, environmentalists, outdoors enthusiasts, and pretty much anyone who doesn't want to see small roads turn into bigger ones turn into major logging/mining/drilling projects turn into "well, it's already so developed what is the problem with going a little further" slippery slopes. It is also likely to severely limit, in theory if not in practice because many ORV users regularly flout restrictions, damage from off-road vehicles, snow mobiles, and 4x4s. If you would like a more digestible summary of the case you can read it in the NYT though it is only a shadow of the bigger issue.

Sharks and Rhinos

Last week I saw two articles that I thought would be interesting to juxtapose. The first is a piece from the NYTimes on the increase in the theft of rhino horns as trade in legal horns has become more difficult (the increased CITES and EU restrictions have also apparently increased poaching, but are on the whole a positive. Rather than loosen restrictions it would be best to increase commitments and support for conservation and anti-poaching forces and economic development to alleviate the poverty that makes poaching and trafficking a desirable way to earn a living). The second was a short piece in the LATimes about the advancement of a ban on the sale of shark fins through a legislative committee in the state senate.

First off, some housekeeping: I am not a vegetarian, though I do try to eat responsibly. I also am not opposed to hunting or fishing generally (and have partaken in those activities), but especially not as game management techniques where other top predators have been removed or when dealing with invasive species. I also do not want to get into a big philosophical or ethical discussion about the propriety of having all these specimens of endangered animals floating around the developed world. Yes, specimens are necessary for scientific study and the expansion of knowledge (and increased awareness of biodiversity). Yes, more specimens were taken in the days of colonialism than were necessary, and for less than noble motives. But they were and we have to move forward from that point. You can't return a stuffed rhino to the wild, any parallel to the Elgin Marbles is superficial and ultimately false.

Now, onto the actual comparison. Both rhino horn and shark fin soup are traditional Chinese medicines and foods. That's pretty well established. However, there is much more general condemnation of the former than the latter. While use of rhino horn is portrayed as ridiculous, observe the outlandish list of purported powers it has, "aphrodisiac," cure for cancer coupled with the commentary from a scientist that ingestion would be "about as healthful 'as chewing on your fingernails.'" There is no room for cultural differences. It is represented as dangerous, destructive, and misguided, based on superstition not on science.

Contrast that with the proposed ban on shark fins. While there is already a ban in other western states, the battle in California is getting heated as it constitutes a much larger economy than its Pacific neighbors. In the short piece on finning, the dispute is framed as conservationists versus those seeking to preserve their cultural heritage (whether perceived or constructed, shark fin was long a food for the elites in certain regions and has only become more widely consumed as technology and economic development have reduced costs and increased incomes). While the tone of the article does convey a bit of he said/she said, it does ultimately appear to come down on the side of science and conservation, strengthened by the quote from a state assemblyman who is originally from China, grew up with shark fin soup, and has since come to reject it (as have a number of other prominent Chinese people including Yao Ming). The accompanying photograph illustrating a shark finning vessel, lines strung up with fins (sharks presumably lying dead and bleeding on the ocean floor) also serves to make the point: finning is brutal, cruel, and damaging to the health of ocean ecosystems (as well as to the sharks). It's also incredibly unhealthy for human consumption. As top predators, sharks accumulate toxins such as mercury at very high levels via biomagnification. In many species these toxins can reach hazardous levels.

I know that's a lot of material to pull out of a blog item, but I thought it made for an interesting comparison, and one that gets back to one of the things I want this blog to explore: what is the real value of nature and the biodiversity of life? Does it have its own inherent value? Is it simply a social construct? Does one culture or society's value or construction take precedence over another's? Should it? What are the processes and circumstances that lead to a change in these constructions and how can they be enabled or impeded?

None of these have clear answers, and answering one might destabilizing your answer to another, but they are definitely worth thinking about. I try to keep them in mind as I go through life (even when I'm not writing here, which I should do more often) and I hope you do too.

Point Reyes

First off, apologies to anyone who is reading for not posting in a long time. I've been busy with a number of personal projects and other issues. It's summer now and I'm going to be making a concerted effort to do more posting more regularly.

One of the things I've been working on is some pro bono work for an environmental non profit called the Environmental Action Committee of West Marin on the Point Reyes National Seashore potential wilderness issue. Essentially the issue is this: when the park was created there was an oyster farm operating in Drake's Bay, within the boundary of the park with a lease set to expire in 2012. The enabling legislation for the National Seashore was accompanied by a committee report indicating that all commercial activity in the bay should eventually come to an end. The owners of the reservation for use and occupancy (RUO) sold their lease to the Drake's Bay Oyster Company (which knew full well of the limitations and timeline for termination). Upon the cessation of oyster farming and removal of commercial equipment, this part of the park would become officially designated wilderness (as legislatively determined). However, the DBOC successfully lobbied Sen. Diane Feinstein ("D"-CA and friend to corporate interests of all types) to insert a rider into an appropriations bill granting the Secretary of the Interior the discretion to issue a ten year extension (called a special use permit) of the lease. For more detail on the history of this issue, see the NPS' background page or the EACMarin website.

Under federal law, whenever an agency takes an action that might have environmental effects, it must complete an environmental impact statement (EAS) in fulfillment of its duties under the National Environmental Policy Act (NEPA).* NEPA, however, is merely a procedural statute; it does not determine outcome. The important thing is that the process is done properly and with a full review of relevant facts and meaningful input and feedback from the public. Once the EIS is complete, the Secretary can issue a decision.

What I have been doing is providing background and assistance on NEPA and challenges to a decision made under NEPA as well as providing my opinion on various aspects of the public comment process that goes into developing the EIS. The comment period has closed, now is the time to wait for the agency's decision, continue to pressure it in appropriate ways, and prepare for potential legal challenges to the outcome (there will certainly be a legal challenge either way but because of the deference courts generally give to agencies, especially regarding scientific findings in areas of agency expertise, the agency action will likely be upheld). Still, I will update once there is a resolution.


*This is, of course, an oversimplification. There are different levels of review and different types of findings, but the need for an EIS is the only relevant issue here.

DeChristopher Convicted

Tim DeChristopher, the environmental activist who bid on oil and gas leases to prevent development of sensitive tracts near Arches and Canyonlands National Parks, was convicted yesterday on both counts (false statements and impeding a federal auction). This is not surprising as he had admitted to the acts and he was barred from discussing his motives. The New York Times' reporter Kirk Johnson asked "Do Motives Matter?" in a blog post about the verdict. Legally, in this case, the answer is no. Without the ability to argue necessity any discussion of his motives, technically speaking, would be irrelevant to proving the charges; the government asked the jury "did he do it?" and reminded them that it didn't matter why. (Aside: motive is almost always irrelevant in criminal prosecutions (though it can be relevant in sentencing), a misconception that is perpetuated by pop culture portrayals of trial. Cops rely on motive in investigations, but in the courtroom it is rarely an element that must be proved).

Mr. Johnson is asking the wrong question. Rather, he should be asking "why was this case brought?" Prosecutorial discretion is the principle that the executive has the right to determine which cases are tried, which suspects tried, and what the priorities of enforcement will be. First, the Obama administration pulled the tracts in question from development, negating the auctions, so there was no harm to the government. Second, his motives were honorable. This is the case of a non-violent student engaging in civil disobedience. That he would be prosecuted and now faces up to 10 years in prison for this is unconscionable, especially from an administration that, despite its abysmal record in many areas, actually has a relatively good (though far from exemplary) record on environmental issues. However, what it comes down to is corporate power and money and, as DeChristopher said after his conviction, "I can't point to many examples where they've sided with future generations over corporate interests." It's just another in a long list of examples of Obama siding with the rich and powerful instead of supporting meaningful systemic reform.

At least he was convicted of dealing only with the Bureau of Livestock and Mining and not the historically (even more) corrupt Minerals Management Service (now Bureau of Ocean Energy Management, Regulation, and Enforcement). That would have been intolerable. And perhaps he will raise the profile of the continued problems of widespread oil and gas leasing, climate change, and environmental degradation (especially near sensitive lands) and serve as a martyr. The first hero in a long fight.

DeChristopher Trial

Tim DeChristopher's trial is being conducted this week. DeChristopher is the environmental activist who prevented oil and gas drilling on lands near Arches and Canyonlands National Parks by bidding on and winning $1.8 million dollars worth of leases on BLM land in 2008. Unfortunately he has been barred by Judge Dee Benson from discussing his motives during his trial. While this is not particularly surprising, it makes it highly likely that he will be convicted. The statutes under which he is being charged require a "knowing" or "intentional" standard and the court rejected his "necessity defense." In other words, it said that even if all the evidence he planned to present in court were believed, it would not meet the requirements to legally justify his actions as preventing a greater harm. In its order barring discussion of necessity, the court held that he could not establish that he was forced to choose the lesser of two evils, that he couldn't show enough of a connection between the leases and the threat of climate change, and that he had other legal alternatives.

At trial, however, his defense team managed to get an allusion to his motivations into the courtroom, though that line of questioning was quickly shut down and the court cleared. Despite being only a brief mention, and even if Judge Benson instructs the jury to disregard, the practical effect is that this idea is now in the minds of the jurors (if it wasn't there already). Whether that is a good or bad thing is certainly an open question (this is Utah we are talking about), but orders to disregard are generally meaningless since one cannot unhear testimony or actively purge ideas. "The jury shall not think of a pink elephant." His defense team's efforts to claim he didn't intend to disrupt the bidding process or knowingly misrepresent himself as a bidder in good faith are less persuasive. "Ignorance of the Law Is No Excuse" is something every first year law student is repeatedly told, and while it is often difficult to prove state of mind, the facts (signed document with explicit promises, clear course of action, no plan for payment, personal statements of intent) make the government's burden quite easy to meet.

His best shot at acquittal is through jury nullification: the jury deciding that even though the government has proved every element of the crime beyond a reasonable doubt it will not convict him because it feels he has done nothing wrong/is morally justified/otherwise excused. It is perfectly legal for juries to do this, though for obvious reasons the government is careful to keep it quiet and I am sure that in jury selection the prosecutors weeded out most of the environmentalists, outdoorsmen, and other likely sympathizers.

On an unrelated note: the Salt Lake Tribune's coverage has been, as one would expect, fairly biased against DeChristopher. Referring to him as an "admitted monkey-wrencher" and, pejoratively as a "'true believer' of the environmental movement." I suppose this is to be expected of a Utah paper.