A private property duty of stewardship: changing our land ethic.

• Author: Karp, James P.

1. Introduction

   The king is dead. Feudalism is dead. Despite their deaths they do not seem well buried. Some hear the cry of their ghosts roaming the land, spreading their message of fear. They trumpet that the safest haven against the tyranny of the king is private property. It provides stability, fulfills expectations, assures fair treatment, and safeguards liberty. Do not let him have a slender hair of your rights, lest the king rip great handsful from you. Do not listen to the distant drummer who beats out a tune of a different tyranny for it is false prophecy.

   The tyranny of millions of individual people, making small, insular decisions, for narrow, selfish purposes threatens us, sounds the distant drummer. The paradigm of "frontier economics"'(1) and the tyranny of the amalgam of many small decisions must be buried with the king. It is no less oppressive and arbitrary to have one's fate in the hands of the tyrannizing masses than in the despotic king. It is our very survival that is at risk. It is a time for systemic change lest we be shortly interred with the king. That is the message of the distant drummer.

   Until recently humans, the dominant species on the planet, have battled the natural environment to eke out a survival, or a modicum of quality living. Many still do. As our numbers have grown, as our technologies have evolved, the balance of power has shifted. No longer do humans merely adapt to the proclivities of nature, they now alter them.(2) Concern has shifted from what mother nature will do to us, to what we will do to her. Basic planetary systems are being altered. The earth is warming and the climate is changing due to a build up of carbon dioxide in the atmosphere. The warming is not yet positively proven, but highly probable; the impacts are speculative, but probably significant; and the public concern is very real, and it should be.'(3)

   In looking at the big picture it does not matter that the small group of scientists who continue to resist global warming as a phenomenon may be right, or that the impacts may not be as dire as prophesied. The important fact remains that humans, long involved in changing local environments, are now altering the planetary environment. If not global warming, then ozone depletion, increased desertification, loss of biodiversity, acidification of rainfall, can they all be the songs of a false drummer? If not, then our survival may be at stake.

   The privileges of private property won in recent centuries have in significant measure created the problem, but they should not be surrendered unnecessarily. They have in fact been instruments for enhancing the quality of life. The quest to protect the privileges of private property against all intruders regardless of the price or need, however, is an unholy one. The human community's interest in survival must be the privileged right. The natural systems upon which we as a community rely for survival must be protected, and if private property rights must be sacrificed to achieve that protection, so be it. The yuppie must join the king in the mausoleum.

   This Article will focus on recasting the rights and the responsibilities of private property in order to attain a balance between the rights of private property and the duties that accompany the ownership of land. The purpose of these rights and duties is to assure the right of the community to survive. Section II elaborates on the nature of the right of survival. Sections III and IV describe the imbalance that has arisen in the rights and duties equation pertaining to land ownership and discuss the reasons for the existing imbalance. Section V proposes that a duty of stewardship be created in the law to redress the imbalance and to facilitate and enforce the evaluation of a land stewardship ethic. Section VI attempts to provide a theoretical base and justification for stewardship, and finally, Section VII explains that the duty of stewardship will not deprive private property of its essential benefits and protections.

2. Basic Right to Survive

   There is no more fundamental instinct than to survive; the right to live is the right from which all other rights spring. All states have the paramount duty to guarantee this right.(4) Yet, one is justified in taking the life of another in self-defense, many states permit the death penalty as punishment for the perpetrator of heinous crimes, and states regularly send their young to die on battlefields in defense of the states' interests. All rights are limited, even an individual's right to survive.

   Rights are not single-faceted. Since humans live in states, families and other social arrangements, the existence of rights for individuals within the group must give rise to duties. No individual can have a right unless the other members of the group have a duty to respect that right. At this point in our history we are much less enthusiastic about our duties. Many trumpet their right to a jury trial, but few submit without coercion to serving as a juror.(5) This sort of tepid response to duty unfairly limits the rights of other members of the group. Most of us will concede, however, that generally we owe our fellow citizens the duty not to take or threaten their ability to survive. Certainly it can be said with equal fervor that we have a responsibility to respect the lives of our fellow citizens' children and grandchildren, and even their great-grandchildren. This attitude emanates from some community-based moral or ethic inherent in humans that individual rights, though important, must submit to the rights of the social group and its posterity. Aldo Leopold said it best: "[A]n ethic is a limitation on freedom of action in the struggle for existence."(6)

   If there is a community-based ethic protecting survival, it must transcend this time and this generation. Essential to survival is the health of the planet which provides the sustenance for life. One writer states that each generation has a "deep moral obligation" to conserve the planet for future generations.(7) Others speak of sustainability or sustainable development, meaning that each generation can seek to maximize the quality of their lives, so long as in the process they do not deprive future generations of similar opportunities.(8) Individual rights and current generational rights must be tempered by the duty to sustain life-support systems and ecological processes so that survival, with a reasonable degree of quality, is retained over time.(9)

   Sustainability is not foreign to our culture. The concept of sustainability is intrinsic in the current budget agreement between the President and the Congress. Under the agreement, new spending proposals must be accompanied by an identification of the sources of revenue to pay for the proposal.(10) The agreement seeks to bring balance to the spending-and-revenues equation in order to halt the worsening budget deficit. The deficit is incurred at the expense of future generations, who will have to pay for it. These generations will have no choice in incurring the deficit, and it can be viewed as a form of taxation without representation. The planet and its natural systems provide the base map onto which all other systems must be overlaid, including that of the economic system. It must be protected from inordinate deterioration through abuse by the current generation, so that future generations will not have to pay unfairly.

   To assure survival, the air, the water, and the land must be protected from undue deterioration. If survival is accepted as paramount and the stem of all other rights, retaining healthy air, water, and land tempers all other rights and is imperative, not a matter of choice. There is probably little disagreement about the notion that the planet is finite and that it provides us with the only life support system we know to exist. If the right of survival is to be honored, this finite resource upon which we rely must be conserved. There is surely a consensus that the right of survival crosses time boundaries, and that given that this right exists, duties must exist as well. This may end the consensus. It is much easier to enjoy the rights to nature's bounty than to constrain our claims by honoring our responsibilities to the community at large, and to future generations.

   The prevailing paradigm that economic efficiency is paramount complicates the matter of being sensitive to the needs of generations to come. If our responsibility to future generations can be satisfied by maximizing consumption, while passing the fruits of our knowledge, institutions, technology and capital improvements along in exchange for our consumptive excesses, we are doing very well."(11) This approach, however, ignores the fundamental reality of the earth's finite nature by relying on science and technological developments to fill the resource niches created by our consumption habits. Survival is a lot to bet on unknown and perhaps nonexistent technological solutions.

   Imperfect knowledge is a critical element to assess in the quest for survival. We do not know that global warming exists, nor do we have any but the vaguest notions of its costs. We do not know the long-term impacts of ozone depletion in the upper atmosphere, or ozone pollution at ground level. We have only minimal understanding of the implications of cutting huge segments of tropical forests, and know only slightly more about cutting temperate forests. Despite this knowledge vacuum, we move full-bore ahead. It is our destiny in a market economy.

   Some question the wisdom of our approach. One writer warns that because knowledge is so incomplete, reason must tag along behind ethical judgment.(12) Another contends that economic theory disregards moral education and leadership(13) in making decisions about resource allocation. Few seem to have listened to these cautions concerning our current course of action.

3. Legal Analysis to Date

   The Fifth Amendment to the U.S...