7966

• UCREFRP Catalog Number: 7966
• Author: MacDonnell, L.
• Title: The Evolution of Property Rights, Incremental Change, and the Progressive Resolution of Intractable Conflict.
• USFW Year: 1993.
• USFW - Doc Type: University of Colorado, Boulder, Colorado.
• Copyright Material: YES

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that it is somehow my obligation to give up or limit or impair my
long-based right to use that water in order to protect some
species about which I hardly know and certainly have very little
interest?" This has all the ingredients of a very, very serious kind
of conflict. Nobody is going to be very interested in giving up a
benefit that they hold in a situation like that. You can't just walk
up to someone and say, "Give me some of your property, it
would be good for society for you to do that." Not in this culture.
Our culture values individual freedom and private property very
highly. We wouldn't be very happy about that sort of request.
So, looking at this from a legal perspective, we are now
trying to understand the nature of the property right that
individuals have, in fact, been given. That is the most critical
question. Considering the question of water rights--does a
"property right" in the case of water assure the holder some fixed
quantity of water that is immune from any encroachment?
Going back to the analogy with a private house, although I
own that house and that land, I'm very accustomed to the idea
that I can't build anything on that land that I want. It has been
clear since the 1920s, at least, that governments have the right to
zone land, which limits my ability to develop and use land in any
way I wish. Landowners now understand and accept that. I also
know, as a matter of nuisance law, that I can't use my property
in any way that I like if my use will cause harm to other property
interests or other individuals. Property owners understand that
too, and they accept it.
What I think we are doing now is asking questions about
other kinds of limitations on property interests that extend to and
include protection of public values. These values don't necessarily
bring direct benefits to an individual. Also, they aren't recognized
as clear exercises of the police power (as zoning is) and aren't
based on the need to protect your fellow neighbor's property, or
health, or well-being, but extend to public values that are not
necessarily as well-established, such as ecosystem values.
People are trying to emphasize the importance of viewing
resource management issues in a broad way as one way to work
around this problem. So we are beginning, on public lands, for
example, to talk in terms of ecosystem management. But that's
not enough. Habitats don't end at private property lines. We
have to learn how to integrate private property within the public
property of the West to truly have effective ecosystem
management.
Similarly, in the water resources area, we are thinking and
talking a great deal more in terms of watersheds. Here it helps
us to search for solutions that may be more creative than the
more immediate solution that one might look to. As John has
done in his program, it helps to look quite broadly within an
entire watershed at a whole set of options. This is complicated.
My sense is that the conflicts in this area are not amenable
to a quick fix. There is no immediate change that is going
happen here. There is no single answer. What is going on here
is a process of evolution in the nature of a property right. People
are beginning to understand that there may be good reasons to
alter their image of property--that there are different notions of
what the property interest is that they hold.
On the other hand, society is struggling to determine what
are reasonably-accepted intrusions into people's expectations
about their rights on the use of property. How far can we go?
We will have continued litigation on this--but we won't
resolve it through litigation. -
If you look back at property interests, for example, in
the water area, back long ago we used to have something
called the "natural flow doctrine" in riparian water law. That
meant that the flow of water in a stream could not be
impaired in any way. That was the definition of riparian
water law. Those who benefitted under that definition of
riparian water law, of course, did not want to see that
definition of their property interest in water altered. But it
did change.
It changed when we were no longer a country in which
navigation and free-flowing streams were the highest value
of water. We became an industrial country in which mills
and water power became important. It then became
necessary to control water to some degree in order to have
these benefits. So we went to what was called "a reasonable
use doctrine." This is one example of how the idea of
property, the definition of property, has changed over time.
Those changes were economically driven--they were made to
meet societal needs. The question today is, do we want to
alter the definition of property to meet societal values that
are not driven by economics? That is clearly what we are
talking about here.
These conflicts today have to do with education. They
have to do with getting people to begin to understand the
broader world in which they live, where they begin to see
outside their narrow property boundaries. They must begin
to see that their property is part of a system; their water is
part of a system. And, hopefully, they will find that there are
some benefits to this broader view that will replace the
benefits they lose through the older view.
The transition will be a process implemented through
the work of people like those in the Bureau of Reclamation.
The Bureau, for instance, is starting to operate their water
storage facilities in a different way than they used to in order
to provide increased environmental benefits. So far, the
Bureau has been able to provide deliveries without affecting
any one's property or contract rights. But that situation is
changing. California is faced with a very difficult decision in
that respect. The Sacramento/San Joaquin Delta, the area
that feeds into San Francisco Bay, has suffered enormous
problems in water quality and fish habitat over the years.
These problems have become so severe that the state is
considering reducing the amount of water that agricultural
and urban water users may take from the Delta. The State
Water Resource Control Board issued an order that would
have, in fact, reduced the historical diversion right of major
water users in this part of California. This reallocation
decision has been put on hold for now, but is likely to occur
at some point. Is such an order a taking of the water users'
property interest? Well, we'll see if litigation arises on that
question. I don't think it is. I think you measure the property
in a water right, not by quantity of water, but by benefits
attained from that water. As long as you can generate
equivalent benefits from the available resource, and there is
a sound public purpose in reducing the quantity that you
may have, that will sustain the Constitutional challenges. But