Bioregional conservation may mean taking habitat.

• Author: Colburn, Jamison E.

1. 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. Protecting landscape permeability by transferring interests in land to nonprofits is a legitimate use of sovereign power, and enabling statutes ought to clarify this authority wherever necessary. Also, there are ways of taking interests in such lands that may not even amount to "takings" in the constitutional sense. In conclusion, though, I assume condemning conservation restrictions can, in some circumstances, amount to a taking. But, liability in that event can be minimized or even, in some cases, eliminated. Before coming to these arguments, though, this Article frames the discussion in its larger context: the protection and restoration of intact landscapes and species assemblages.

2. WHAT DOES BIOREGIONALISM MEAN?

   Bioregionalism, though simple in concept, has thus far proven operationally intractable. "A key to making bioregionalism work is a close examination of boundaries and what they mean." (15) Most of our political boundaries are completely unrelated to the earth's "ecoregions" (16) or "bioregions"--regions defined by their biota. But a close examination of legal boundaries often reveals that, though unrelated to biophysical realities, they are fixed and powerful nevertheless. (17) Working to keep landscapes (18) intact, in short, requires confronting our legal system's fragmenting and commodifying tendencies and improvising the mechanisms to bridge its divides. Doing such work at a "bioregional" scale entails understanding the ecological relationships binding organisms and their environments together and promoting collective self-governance motivated by that understanding. Part II unpacks this ideal.

   1. Scale and Scope: The Challenges for Integrative Conservation

      Late in the 1980s, the 1.8 million residents of northern New York, Vermont, northern New Hampshire, and inland Maine coalesced for a short time and came to the brink of forming a politically cohesive bioregional identity. (19) That is, they came to view their socioeconomic fortunes as intertwined with the region's ecology. The catalyst was a perceived threat to "traditional patterns of land ownership and use" (20) in the sweeping 26 million acre (mostly montane) region comprising the "Northern Forest." (21) Yet, as quickly became evident, the content of these traditions is contentious. The threat provoked a pair of blue ribbon study groups, public agitation, and a multitude of proposals for legal reform. It even built momentum to create a massive national park in the region that still ripples to this day. (22) In the end, though, what it produced were recriminations on why nothing concrete was actually accomplished. No public structure of any kind collectivizes the region or its ecosystems in any way today. (23) The same localism New England unleashed on the nation (24)--a faith in local control that has dulled and blunted a long procession of tools for protecting nature in ways detailed elsewhere (25)--shorted out the Northern Forest agenda. Consequently, whatever threats the region's citizens perceived then, remain perceptible today. By the end of the 1990s, the region's "Northern Forest Initiative" had cratered, which is precisely what every ecosystem-wide management initiative to date has done. (26)

      Biodiversity professionals have come to this (painful) realization in efforts to achieve integrated, bioregional responses to environmental degradation in places as diverse as Greater Yellowstone, (27) the Northern Cascades, (28) the Great Lakes, (29) the interior Columbia River basin, (30) the Chesapeake Bay, (31) and elsewhere. In the abstract, it is rational to focus finite management resources on whole species assemblages, whole watersheds--whole natural systems. Conservation biology speaks of "representation," of saving some of everything. (32) Such insight has thus far been a chimera. (33) Bounding any landscape or natural system and learning enough about it to "manage" it rationally is: 1) practically impossible given the laws of ecology, (34) and 2) politically naive given the geography of popular sovereignty under our Constitution. (35) The changing land use patterns in the Northern Forest are often summed up in a word--sprawl--but as to prescribing alternatives, public action usually stalls. (36)

      Deforestation has been a constant of human history (37) and the struggle to define "sustainability" involves those far beyond the borders of even the largest forested regions. (38) Moreover, this region is not facing deforestation per se. It is facing something much more incipient: exurban sprawl and all of its consequent biological disturbances. Indeed, the steady pace at which this region is being carved into the semi-built landscape of exurban America--a landscape of roads, trails, transmission lines, cell towers, scattered homes and retail, ski slopes, golf courses, etc.--is rivaled by only one other influence in its potency: climate change. (39) With the vast majority of the land privately owned and regional property values rising steadily as affluent Americans seek out their place "away from it all," the region's future as a land market is threatening to undo what it has become over the last century: one of the greatest expanses of continuous habitat east of the Mississippi. (40)

      The states and federal government seem paralyzed, leaving the Northern Forest to suffer what Michael Heller has called a tragedy of the anticommons. If the commons is the opposite of private property, i.e., private property is the division and distribution of what are otherwise rights to use or exclude that are held in common, (41) then it is possible to have too many owners whose properties are too small and/or too divided to manage their interrelated resources efficiently, making it likely they will fail to bargain into optimal arrangements. (42) There are perhaps several hundred thousand landowners in this region. (43) Additionally, as of 1990, more than 70 million people lived within a day's drive of the region. (44) Even those whose land is not for sale generally have little inclination to support laws flatly...