GARRETT POWER, University of Maryland - School of Law
Email: gpower@law.umaryland.edu

In the American constitutional system the sovereign has the power to enact regulations which are necessary to the common good and general welfare. But the Fifth Amendment to the United States Constitution proscribes that: No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation. And the question of whether a sovereign regulation has taken private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of regulatory takings sits upon a shaky foundation of split decisions; the Court's construction of the constitutional property remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This Great Divide is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of judicial restraint. Those in the Court's liberal wing are said to be judicial activists who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's constitutional property jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

DAVID A. DANA, Northwestern University - School of Law
Email: d-dana@law.northwestern.edu

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

MATTHEW L.M. FLETCHER, Michigan State University College of Law
Email: matthew.fletcher@law.msu.edu

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised - why didn't the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question - why didn't Indians and tribes file suit to vindicate their rights to land?

SCOTT ANDREW SHEPARD, Wake Forest University - School of Law
Email: sashepard@hotmail.com

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications - as a result of applying various doctrines, or of limitations inherent in the rights as granted - are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a move would not serve the ecological-protection, social-justice or efficient-use objectives claimed for it. The wiser course is for states to renounce any pretence to uncompensated-taking authority; establish ecological-use water trusts of a quasi-private nature; and arm these or co-ordinate public agencies with both eminent-domain power and the power to negotiate agreements freeing extant water rights from various alienation-and-use restrictions. This would secure for exclusive ecological use a water supply equal to fisc-backed public demand, would spur efficient planning and use of ecological waters, and would enhance the water-law regime's ability to spur efficient and wise use of waters remaining in private hands.

J.B. RUHL, Florida State University College of Law
Email: jruhl@law.fsu.edu

In recent years, ecologists and economists focusing on agriculture have forged a vision of agricultural lands as housing the natural capital capable of providing a stream of diverse good and services, including ecosystem services such as increased biodiversity, carbon sequestration, pollination, groundwater recharge, and improvement of water quality. This Article explores the emerging theme of farms as multifunctional land uses and suggests ways state and local governments can help ground it through flexible, efficient policy instruments. Although federal farm subsidy programs surely could be repositioned to better promote farm multifunctionality directly, the benefits of multifunctional agricultural production, compared to the conventional commodity production orientation, are primarily local. On this policy front, therefore, I envision federal policy providing support to state and local innovations rather than dominating the field as has been the case historically.

Part I examines the theme of farms as multifunctional production units as it is developing in ecological literature, then examines farm policy through four guiding principles: cross-cutting regulatory approaches; trade-offs; scaling regulatory authority to the problem; and expanding the use of decentralized strategies. Part II provides a general survey of the potential future scenarios of agricultural land uses and the tools state and local policy could use to help break the logjam of agriculture-environment policy by promoting the multifunctionality of farms. My focus is on exploring how state and local land use policy can play that role with respect to the production of ecosystem services from farms, which are, after all, profoundly local in character. Part III of the Article then uses two case studies from Florida to focus on two such tools in particular - payments for ecosystem services (PES) and the transferable development right (TDR). Although distinct in several ways, including fiscal impact, the role of regulation, and the medium through which provision of ecosystem services is rewarded, these two approaches share design issues being worked out in two newly-initiated programs in Florida, as summarized in Part III.

This Article makes the case that state and local policy, through PES, TDR, and similar techniques, can have a significant role to play in moving toward that vision. Federal farm policy should encourage and support such state and local initiatives, as it is in the national interest to maintain and enhance the natural capital that agricultural lands contain and can deliver locally across the landscape.