August 4, 2017

Secure property rights are the key to conservation

By Jonathan Wood Attorney

Too often, property rights and conservation are treated as if they are in tension. But, in reality, property rights are a proven means to encourage responsible stewardship, resolve conflicts over limited resources, and empower environmentalists to protect resources they value.

line2879_-_flickr_-_noaa_photo_libraryTo achieve these positive environmental ends, however, property rights must be secure. If courts do not protect them, or the law makes who has what rights fuzzy, they will be less effective and there will be more conflict. That’s why PLF joined with the Property and Environment Research Center (PERC) to file this amicus brief in the Maine Supreme Court asking it to side with property owners in a dispute over rockweed harvesting.

In Ross v. Acadian Seaplants Ltd., a company is trying to expand Maine’s public trust doctrine to allow it to harvest rockweed (a species of seaweed) from private property without the owners’ permission—and over their explicit objections. In Maine, coastal property owners own the land between high and low tide, an area where valuable rockweed grows. Many property owners, concerned that current harvesting is unsustainable and harmful to the local ecosystem, forbid harvesting on their land. Although this land is subject to public trust rights, those have been limited to “fishing,” “fowling,” and “navigation” for almost 400 years. Expanding public trust rights beyond those limits to include rockweed harvesting would destabilize property rights, increase conflict, and undermine environmental protection.

Property rights encourage amicable resolution to conflicting demands on limited resources. In the rockweed case, it’s impossible to reconcile the company’s wish to harvest the rockweed with the property owner’s and environmentalists’ desire to conserve it. But property rights encourage property owners to rely on prices to decide whether harvesting or conserving rockweed is most valuable. If more harvesting is best, the harvester should be willing to pay for it. But if the property owner or an environmental group values conserving a particularly sensitive area more, the harvesters’ offer will be outbid.

Many environmental groups have embraced property rights as a means of promoting their values. They have paid farmers to provide pop-up wetlands for migratory birds, leased water rights to maintain instream flows for fish, have protected a large prairie ecosystem by purchasing habitat and incentivizing neighbors to be better stewards. This free market environmentalism provides more certainty to the environmental groups who embrace property rights than they receive from regulations, which remain subject to shifting political winds and the endless lobbying and litigation that comes with them.

If the Maine Supreme Court sides with the property owners, and rejects an expansion of the public trust doctrine, it will be much easier for environmentalists to protect rockweed and the ecosystems that depend on it.

Suppose you were an environmental group who highly valued conserving rockweed in a particularly sensitive area. If the rockweed belongs to the property owner, your way forward is obvious: buy the rights to the rockweed and conserve it. But, if rockweed is within the public trust, it would be much harder to protect it. Rather than negotiating with an individual property owner, you would have to negotiate with everyone who might harvest the rockweed, a large and uncertain share of the public.

Secure property rights also help to overcome the “tragedy of the commons” that can cause open-access resources to be overused. Property rights align the incentives of the property owner with the long term health of the resource. If too much rockweed were harvested today, the property owner would lose out on future income.

Resources that used to be open access under the public trust doctrine have fallen victim to the tragedy of the commons only to be saved where governments embraced property rights as the solution. Fish, a classic public trust resource, have been overfished in many areas only to rebound through property-rights-based reforms.

Beyond the many policy reasons why courts should secure property rights to protect the environment, there’s also a significant constitutional reason why courts should not unmoor the public trust from its historic limits: the Takings Clause will require the state to pay property owners for the rights taken. Giving the public an easement to invade private property along Maine’s 3,500 miles of coastline will be a massive taking indeed. Courts, in particular, should be extremely hesitant about causing such a large and expensive taking.

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Ross v. Acadian Seaplants Ltd.

Kenneth Ross owns coastal property on Cobscook Bay, Maine, on which rockweed grows in the intertidal area. Acadian Seaplants is licensed by the state to collect rockweed in areas “where seaweed may legally be taken.” Ross and other coastal owners sued to stop Acadian from harvesting rockweed on their property and Arcadian argues that the intertidal zone is held by the public and does not implicate private property rights. The Maine Supreme Court will determine whether the intertidal zone is privately owned property or whether to expand the public trust doctrine to cover it. On behalf of itself and the Property and Environment Research Center, PLF filed an amicus brief supporting private property rights.

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