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PART I. GENERAL TRENDS
Chapter I. THE STATE MANAGEMENT OF RESOURCES
In the midst of a New World that paid homage to the "legend of inexhaustibility," there appeared little need for governmental efforts toward conservation of the resources of the country. However, with the inevitable passing of the public lands and the official disappearance of the frontier, the State governments began to take stock of their resources and put into administrative practice a series of schemes for the control of river pollution and fish restocking (1860's), game protection (1870's), forest preservation (1800's), prevention of waste of oil and gas (1890's), and the promotion of the people's health, education, and general welfare. These emerging State activities slowly proceeded from mere legislative declaration of policy to fact-finding inquiries, then to growing administrative control of certain important segments of the Nation's resources by the larger units of political authority. under the "purchase" and police powers, concomitant with the integration of administrative structures, the coordination of functions, and the professionalization of personnel, until planning has emerged as a regular activity of the modern State.
In the strategy of resources management there may be frequent inter-blending of such control techniques as (a) publ ̊c ownership; (b) ordering-and-forbidding devices under the police power; (c) education, science, and technology, and (d) the "purchase of consent." Execution of land plans has been largely confined to the technique of public ownership or the purchasing of consent, with some recent experimentation with zoning under the police power. Water control has likewise involved the public ownership technique, while mineral conservation has relied largely upon technology, with some implementation by the police power. The conservation of human resources has been in terms of educational and scientific methods or the ordering-and-forbidding techniques of the police power.
On the whole, the courts have tended to favor the growth of State management of natural resources, whereas the conservation of human resources has frequently met with strong judicial opposition. This different legal fate may be explained by the availability of such theories of law as sovereign ownership and the prevention of waste, both of which have high prestige value in the legal system. Where the management of resources rests entirely on the police power (as in the case of labor legislation), the conflict between laissez-faire individualism and other theories appears in the open. The same conflict may exist with equal reference to the management of natural resources, but its resolution is facilitated within the framework of traditional law,
a tactical advantage that has been fully recognized in the recent
The Democratic Setting.-The evolution of the policies and practices of American Government with reference to the management of its resources has possible parallels only in such recently settled countries as Canada and Australia,1 and is quite unlike the history of resources administration in most European countries. The explanation lies in the distinctive fact of the existence of a huge if diminishing area known as the public lands, the prevailing influences of which upon American civilization have been so eloquently outlined by Frederick Jackson Turner in his studies of the American frontier.
In the midst of "new worlds of virgin land ever just beyond," who could talk seriously about conservation? If some did talk, how could they expect the people to listen and pay heed to their warnings? America was preeminently a country where "mines were to be seized, fertile valleys to be preempted, all the natural resources open to the shrewdest and the boldest."2 The frontier was characteristically the era when "borderism had a heyday in which it stole millions, wasted millions, and laid immense areas desolate." It was also the era that "built an empire.' An observing German traveling in the America of the period of the Confederation was keenly impressed with the complete absence of legal restrictions on the use and development of resources. "In America there is no sovereign right over forests and game." To anyone familiar with the established system of forest management in his German homeland, this statement implied an immediate corollary, which he proceeded to state, “no forest service." 3
Neither the theory of the King's fish and game, the King's forest (and its "broad arrow"), nor the King's mines found favorable root in revolutionary America. The English game laws, which even Blackstone criticized for their harshness, were not compatible with the "liberty to fowl and hunt" that was formally declared by the constitutions of Pennsylvania (1776) and Vermont (1777). A Georgia judge indignantly refused to sustain a prosecution under the Black Act (designed to protect private game parks) since it was founded on too "tender a solicitude for the amusement and property of the aristocracy of England" How then could it [i. e., the Black Act] apply to a country which was but one extended forest, in which the liberty of killing a deer, or cutting down a tree, was as unrestricted as the naturai rights of the deer to rove, or the trees to grow; and where was the aristocracy whose privileges were to be secured?
Sovereign rights to minerals contained in the land had been asserted in New York, only to be practically abandoned in 1789 by giving to the discoverers of such minerals unrestricted rights for a period of 21 years, "notwithstanding that such mine or mines, or ore, shall be pretended or claimed to belong to the people of this State, as the sovereign thereof; any law, usage, or custom, to the con trary notwithstanding." Half a century later, during the California gold rush,
1 Cf. S. H. Roberts, History of Australian Land Settlement, 1788-1920 (1924) and M. Desjardins, "Land Settlement in Canada, International Review of Agricultural Economics, IV: pp. 3–49 (1926). Frederick J. Turner, The Frontier in American History (1920), pp. 212, 220.
Jenks Cameron, The Development of Governmental Forest Control in the United States (1928), pp. 17, 137.
4 Commentaries on the Laws of England, IV, 409 et seq. Cf. George P. Marsh, The Earth as Modified by Human Action (1882), pp. 349-355.
State v. Campbell, 1 Charlton 166 (1808). An answer to the second question might have been forthcoming in contem porary Savannah society, but no legislation for the protection of the deer was passed till 1891 (No. 683). For the State constitutions, see F. N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, pp. 3091, 3748 (1909). Cf. the report of the Vermont fish commissioners for 1873-74 (pp. 50-51), where they reviewed the obnoxious features of the game laws leading to the constitutional guarantee. The Rhode Island constitution (I, 17) also includes a guarantee of the "rights of fisery."
N. Y. Laws, 1789, ch. 18.
Judge Field achieved the same result by ruling in Moore v. Snow that the doctrine of "royal mines" was incompatible with free American institutions." Unfortunately, the supply of free and good public lands had to come to an end, forcing democracy to reevaluate both its content and methods. When the country began to take stock of its heritage, it discovered, to its dismay, that the official policy of unrestricted freedom of enterprise in taking over and developing the country's resources had resulted in wanton exploitation and waste and the quick passage of the most valuable forest, land, mineral, and water resources from public to private ownership bent upon its own particular profit without regard to the public weal The United States Bureau of Corporations reported that in 1870 three-fourths of the standing timber was publicly owned, whereas in 1911 about four-fifths of it was privately owned. The preservation of the very basis of democratic society demanded that Government enlarge its sphere of activity to take positive steps for conserving the nation's resources, in the same way that democracy demanded civil service reform, the Australian ballot, regulation of railroads, and the curbing of monopoly.
These resultant changes in democratic sentiment were, in large measure, the basic achievement of the conservation movement. The attitude of conservation had come first in point of time in the more settled sections of the country, where the exhaustion of resources had been clearly visible for a long time, and them moved slowly westward, encountering the perennial conflict between the forces of order and development, between conservation and change. With the maturity of settlement and the receding of the frontier (officially in 1890), the States began to put into administrative practice a series of schemes for the prevention of river pollution and the scientific propagation and restocking of fish, game protection, forest reservation, prevention of waste of oil and gas, and protection and development of the people's bodies and minds by insisting upon a growing number of human standards. The conservation movement popularized these problems as one of the crucial issues of democratic government.
The General Pattern of Chronology.-Although it may not be possi ble to construct any neat evolutionary pattern of the development of the governmental structures and administrative controls concerned with the different kinds of resources, it is interesting to note, roughly, how some of the resources have been recognized in the State governments during different periods of time. Land as a basic natural resource probably is entitled to first place in any chronology of resources agencies, the land offices antedating all the other State agencies concerned with natural or human resources. But the function of the land office rarely stretched beyond the semijudicial disposal of public lands to evidence concern with the long-range results of the administration of the land laws. Conservation is commonly said to have begun with forestry, but actually the State governments had established administrative agencies for the protection of wildlife during the 1860-70's, more than a decade before the appearance of any forestry agency (1885). If not first in the administrative history of conservation, however, forestry may claim the distinction of rising quickly to dramatic im portance in heralding the possibilities of long-range planning of natural re sources. Quite a number of the States were interested in exploring the geolog ical wealth of the country from an even earlier period (1820's), but these organizations were usually short-lived or quite intermittent in activity, and less concerned with mineral conservation than with laying the basis for mineral exploration and exploitation. In fact, little was done about mineral conservation 717 Calif. 199 (1861), overruling Hicks v. Bell, 3 Calif. 219 (1853). Infra, p. 8.
The Lumber Industry, 61st Cong., 3d sess., S. Doc. 818, p. 3.
• "The unsettled area has been so broken into by isolated bodies of settlement that there can hardly be said to be a frontier line," Compendium of the Eleventh Census (1890), pt. 1, p. xlviii.
10 Conservation, said Gifford Pinchot, covers "a wider range than the field of natural resources alone" to apply ta "the body politic as well as the earth." The Fight for Conservation (1910), pp. 48–49.
till the turn of the current century, and even now the governmental management of minerals is largely limited to oil and gas, where its achievements have not been notable.
Of the natural resources, the developmental career of water conservation has been most diversified, starting with the promotion of navigation as a prime func tion of the State governments, which gradually were replaced by the Federal Government after the disastrous canal experience. State activity emerged next in the water field during the 1860's, when the increasing pollution of rivers threatened fish life, and toward the end of the nineteenth century irrigation became important in the Western States. By and large, however, water planning by the State governments was notable by its absence until recent years.,
Education had been institutionally recognized as a State function as early as 1812, health, welfare, and labor in the 1860's, while recreation emerged around the turn of the century. While welfare, labor, and recreational functions of State government had their antecedents in the last century, it is only in the very recent past that they have emerged as major State activities. The very phrase "public welfare" was unknown in State government until 1917, when the Illinois reorganization plan embodied it as one of the principal State departments. It is only since the advent of the social security program that public welfare has come to mean in most States more than mere institutional care of special classes of the population.
The pattern of the growth of management of any given resource tends toward the following: (a) General legislative declaration of policy without provision of any administrative mechanism other than local law enforcement; (b) estab lishment of a fact-finding agency acting rather independently of existing legisla tion; (c) gradual accretion of administrative functions by the larger units of authority, particularly over resources that are publicly owned or peculiarly subject to public control; (d) assumption of services for privately controlled resources and gradual shift from the performance of services to the exercise of various degrees of control, as under the "purchase power" or the police power; (e) integration of structures and coordination of functions simultaneously with or subsequent to the professionalization of resources administration; and (f) emergence of coordinating activity.
Of the resources considered in this study, only forests and recreation may have approximated the full course of this sequence. In some States, wildlife manage ment may claim second place. Mineral and water resources lag far behind, while land management (apart from forests and wildlife) is trying to get ahead as yet under the "purchase power," although some fragmentary experimentation with the possibilities of zoning is being conducted.
The Strategy of Resources Management and Its Legal Basis.It is possible to analyze the strategy of resources management in terms of four main techniques: (1) Public ownership, (2) ordering-and-forbidding devices under the police power, (3) education, science, and technology, and (4) the purchase of consent. In most concrete situations undoubtedly all four techniques may be skillfully interblended, as in game management in the State forests, where the State government owns the land, enforces forest and game regulation thru its police system of rangers, promotes scientific restoration of fish and game, and coop erates with adjoining forest owners in protecting the forests against fire hazards. A distinction can clearly be made as to cases where the government finds that mere police authority or scientif : technology alone may prove inadequate, the former from the standpoint of constitutional law and the latter from the impossibility of performance in view of the constitutional handicap. In order to control such situations, government may be forced to acquire the area involved, as it is daily purchasing huge tracts of land for retirement from agricultural use, or to retain more or less permanently the present status of public lands under a
policy of permanent withdrawal and reservation, or the government may encourage the various interests to accommodate themselves to the need of con servation by the payment of money, performance of services, or adjustment of the tax burden.
The control of some resources exemplifies only one of these techniques to the practical exclusion of the others, as for instance, that of coal, where the outstand ing conservational work has been confined to technological improvements in the recovery of the original resource from the earth and its subsequent utilization, or by limiting consumption through the invention of substitutes. Until very recently game conservation exemplified only the ordering-and-forbidding techniques of the game warden, while fish conservation had embarked on its governmental career as a scientific effort at artificial propagation and restoration of fish. Execution of land plans has been largely confined to the technique of public ownership, with some very recent experimentation with the zoning device under the State's police power. Water control and development has likewise involved the public ownership technique. The conservation of human resources has been in terms of educational and scientific methods, reinforced by the orderingand-forbidden devices of the police power. This statement, however, tends toward an over simplification at least as concerns the present situation as contrasted with earlier administration, for the modern State prefers to perform its manifold functions through no one technique but skillfully invokes all the tools at its command.
Another way of analyzing the situation might be in terms of public and private conservation. Public conservation by definition in this case includes public ownership and may clearly employ the ordering-and-forbidding technique. Science and technology, like guns in war, may be employed in both public and private conservation. However, a vast difference clearly exists between what government may do in managing resources in a proprietary capacity and what it can do in a regulatory capacity under the police power, or what it can do through the purchase of consent. In the earlier period of the American government of resources, when much of the original public domain still remained in govern mental ownership, "public conservation" far outweighed the other. In sheer quantity, and more so from the point of view of quality, the problem of conserva tion has shifted from one largely limited to the public domain, to a mixed publicprivate problem calling for greater inventive ability in devising and executing the strategy of controls. At times it has been more or less frankly admitted that the most difficult problems in the control of certain resources can be handled only by transferring the ownership thereof back to the public or by nationaliza tion. This step would hardly have been necessary if the original policies of selective reservation of land had been retained, or if land survey and classifica tion could have preceded settlement, as required under the first land ordinances. The courts have strongly tended to favor the exercise of governmental control over natural resources, whereas the conservation of human resources (with the exception of education and health) has traditionally encountered strong opposi tion from laissez-faire legalism. The judicial hostility to the development of welfare and labor administration is a well-known chapter in American constitu tional history. It should not be implied that public management of natural resources has uniformly been favored by the courts, for variations in judicial fate can be noted according to the different types of natural resources that may be involved and the relative recency with which State government has begun to concern itself about them. But on the whole, there is a markedly different dispo sition on the part of the judiciary in dealing with governmental control over natural resources as opposed to human resources. What is the explanation? The management of natural resources is able to depend upon certain legal theories, as sovereign ownership and the prevention of waste, which by virtue