Bioregional Conservation May Mean Taking Habitat

By Colburn, Jamison E. | Environmental Law, Spring 2007 | Go to article overview

Bioregional Conservation May Mean Taking Habitat


Colburn, Jamison E., Environmental Law


I.   INTRODUCTION
II.  WHAT DOES BIOREGIONALISM MEAN?
     A. Scale and Scope." The Challenges for Integrative Conservation
     B. The Unnatural History of the Northern Forest
     C. Four Centuries to the Dawn of Restoration Ecology
III. THE STRUCTURE OF HABITAT LAW
     A. Imperiled Species and Prohibitive Norms
     B. Public Lands as Islands
     C. Privatizing Governance: The Arc of Protecting Nature in America
IV.  THE DEAL AND THE WOODLOT: BIOREGIONAL CONSERVATION IN PRIVATE
     A. Working Forests: "Sustainable" For How Long
     B. Misgivings: A Game-Theoretic Critique of Privatization
V.   EXACTIONS: TAKING HABITAT FOR BIOREGIONAL GOALS
     A. Zoning Discretion Into Existence: The Takings Issues
     B. Taking Easements and Choosing Partners
VI.  CONCLUSION

I. INTRODUCTION

Americans are converting their continent into a semi-built landscape of scattered homes, malls, recreational resorts, and the infrastructure that connects them, and doing so at an arresting rate. We face a species loss pandemic globally, but in America habitat degradation is the single worst factor. (2) Sprawl now is as much about explosive exurban growth as suburban growth; a function of socioeconomic and technologic advantages that have altered the nature of work and travel. (3) U.S. Forest Service specialists predict that by 2030, another 21.7 million acres will shift in usage intensity from rural or exurban to urban, and some 22 million more will shift from rural to exurban. (4) An environment hospitable to us, together with a few of our hyper-abundant commensals, is fast becoming the most pervasive landscape in North America. (5) Northern New England and the Adirondacks are exemplary. Investors buying timberlands to break them up have, in about a decade, come to dominate this region's land markets. (6) Of course, no one is for "dumb" growth, but neither are they for radically curtailing the rights of private property and local control producing it. (7) Regions like this "Northern Forest," in short, are in dire need of innovation in the institutions of conservation.

It has been said that "[l]andowners are much more open to listen if it's a suggestion rather than a demand." (8) This country's conservationists have divided sharply over the power of that insight for years now. Command-and-control or market, public or private, and a series of other false choices have consequently dominated a field where virtually no one denies that the type of normative mechanism is critical and virtually everyone concedes that most normative mechanisms have their time and place. This Article uses the Northern Forest to explore this intersection of habitat, land use, and our regulatory state. In two decades, the financing of private conservation has become big business at the same time its practitioners have become ubiquitous. (9) The Uniform Conservation Easement Act (UCEA), a model act proposed in 1981 by the National Conference of Commissioners on Uniform State Laws, (10) is beginning to dominate the conservation landscape nationally and in this region. (11) By 2003, an average of about 825,000 acres per year was encumbered by some form of conservation easement nationwide, (12) making it far and away the most pervasive conservation mechanism in America today. (13) Indeed, if our land ethic ever finds Leopold's path, (14) it will likely be with this vehicle.

A privatized conservationism that raises capital to buy from willing sellers is showing itself to be the structural development of a generation. But this strategy is beginning to reveal its limitations, in part because its agents are in a bidding war, raising their costs at the same time they depress the conservation value of their own bargains. This Article offers a targeted response, sketching three arguments for taking title or fractions of title to land in order to protect and/or restore habitat connectivity, which are referred to as landscape permeability. …

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