As much as the natural gas industry complains about the costs of environmental compliance, it spends a great deal of time and money fighting to keep hydraulic fracking unregulated, and its claims of safety and economic prosperity unquestioned. Their campaign to put a happy face on this harmful technology is designed to stifle the growing movement to ban fracking across the country: to date, at least 76 local and state governments have passed laws banning the practice within their borders.
As Wenonah Hauter over at Huff Post observed, the industry spent over $145 million lobbying Washington in 2010, making it one of the top five industries spending big money to buy influence — and it seems to be working: In January 2011, bipartisan congressional members of the Natural Gas Caucus opposed proposed U.S. Department of Interior rules to disclose fracking chemicals used on public lands; this caucus’ 83 members received a combined $1,742,572 in campaign contributions from the oil and gas industry between 2009 and 2010, according to a Propublica investigation.
By now, you may have seen an industry ad like this, talking up gas as a means of American energy independence and prosperity, but what they don’t say is that there are plans to export it to China and India — and profits too, as these companies are increasingly multinational or even foreign-owned.
Their hired PR guns also come out blazing when unfavorable coverage of the industry erupts, as it did in the New York Times, when reporter Ian Urbina exposed industry insider emails questioning the favorable forecasts the industry has put out on fracking — one insider going so far as calling drilling leases “Ponzi schemes.” As Politico reports, John Hanger, once secretary of the Pennsylvania Department of Environmental Protection and now an environmental consultant, compared Urbina to Judith Miller and Jayson Blair, saying “This is not their [the Times‘] first rogue reporter.”
The Marcellus Shale Coalition (whose members have a financial stake in fracking the Marcellus shale) spent a total of $1.8 million on its PR initiatives in 2009, while the Independent Petroleum Association of America (IPAA) has an $8 million budget, according to the Pittsburgh Tribune-Review. One of IPAA’s initiatives is Energy in Depth, a web site devoted to debunking the documentaryGasland.
Now, the American Petroleum Institute (API) is poised to spend $20 million on an “advocacy campaign”. We don’t know for sure, but given the industry’s difficulties in defending fracking over recent months, we bet this money will go towards a campaign that will continue to spin fracking as a safe means of achieving prosperity and energy security.
How does the industry keep contamination under wraps? It pays settlement fees to families whose water has been contaminated by shale gas drilling — fees that hinge on the landowner signing a confidentiality agreement to keep details about the case from government agencies, the media and the public.
As highlighted in a recent New York Times article, the industry pays to keep details of the public safety problems associated with gas drilling hidden from government agencies that could do something to regulate it. This has been happening for decades, and it allows the industry to continue using one of its most disingenuous talking points: that there have been no documented cases of contamination from gas drilling.
In May, New York Attorney General Eric T. Schneiderman sued federal agencies to provide a full environmental review of fracking in the Delaware River Basin since it could affect the drinking water of nine million New Yorkers.
API, IPAA and the US Oil & Gas Association intervened in the case, arguing that its members would be adversely affected. But two of the 10 federal agencies sued by Schneiderman have actually supported further review of fracking — the National Park Service and the U.S. Fish and Wildlife Service.
Recently, Wellsburg, West Virginia rescinded a ban on shale gas drilling. It appears that one reason for this might be that Chesapeake Energy recently rescinded its funding for the community’s school music program in direct response to the ban. $30,000 might not seem like a lot, but for a struggling rural school system, it certainly is no small potatoes.
A more straightforward example of how the industry buys influence beyond Washington is in New York State, where the oil and gas industry spent $1,204,567 lobbying against fracking moratorium bills in 2010, outspending groups supporting the bills 4 to 1.
Spending big money to influence policy in New York paid off for the industry. The New York Department of Environmental Conservation released a report early last month suggesting that 85 percent of the Marcellus Shale be opened up to fracking, and Governor Andrew Cuomo appears to be on board.
The industry hires academic shills who prepare reports that shine a rosy light on the industry — while glossing over serious concerns. In June, an MIT report titled, “The Future of Natural Gas” was funded by the oil and gas industry. As they write on their site:
In FY 2010, MIT’s industry-sponsored research totaled $111 million. More than 800 firms now work with MIT, both in Institute-wide programs such as the Industrial Liaison Program and the MIT Energy Initiative and in smaller collaborations… More than 180 companies partner with the program to improve their access to MIT and advance their research agendas [emphasis added].
Penn State also recently released a pro-fracking report funded by the Marcellus Shale Coalition. Media Matters for America recently took the New York Post to task for citing the report in an editorial supporting fracking, without mentioning the industry group that actually paid for it.
This happens all too often, and is a way for the industry to launder credibility for its position through third-party academic institutions.
At a June hearing in Washington, Pennsylvania, numerous landowners who had leased their land to gas drillers appeared at a hearing to talk about the benefits of fracking. But it’s what got them there that’s the interesting story: they were offered Pirates tickets, in addition to hotel rooms and travel expenses. That was one way the industry assured that the spaces at the hearing would be filled with pro-drilling voices.
It’s not much better in Washington, D.C. At the July 13 meeting of the Natural Gas Subcommittee of the Secretary of Energy, Advisory Board Safety on Shale Gas Development, the industry overwhelmed the proceedings (click here to see testimony.)
Let’s talk about this. From the beginning, there was no private ownership of water. Under Roman law, tidewaters (like rivers and seas) and submerged lands (stream beds and shoreline) were community property, held in trust by the state for the benefit of the public. This approach to water management endured for most of human history. Consider, for example, 13th century Spain. Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise, recognized public rights in navigable waterways. In England, this principle evolved into the common law public trust doctrine: the king held all waterways and submerged lands, not for himself, but rather “as trustee of a public trust for the benefit of the people” for uses like commerce, boating, and fishing.
After the American Revolution, each of the original states succeeded to this sovereign right and duty. Each became trustee of the tide and submerged lands within its boundaries for the common use of the people. Subsequently admitted states, like California, have the same sovereign rights under the equal footing doctrine. That is, title to lands under navigable waters is held by the state in trust for the public good. These lands are not alienable, as the public’s interest in them cannot be extinguished.
II. Purpose of the Public Trust
The Supreme Court described the nature of a state’s title to its tide and submerged lands in 1892, and although courts have reviewed tidelands trust issues many times since then, the Court’s premise remains fundamentally unchanged: a state’s title to its tide and submerged lands is different from that to the lands it holds for sale. “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties. Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452. In other words, the public trust is an affirmation of the duty of the state to protect the public’s common uses of its waterways.
Are what are these common uses? Traditionally, public trust uses were limited to water-bourne commerce, navigation, and fishing. In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes. It is flexible enough to accommodate changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat. The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another.”
The state legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the trust and often may be the ultimate arbiter of permissible uses of trust lands. All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes. For this reason, the legislature cannot commit trust lands to private development because it would be abdicating its duty as a trustee. Within these confines, however, the legislature has considerable discretion.
The legislature speaks to the issue of permissible uses when it assigns trust lands to local governments. Statutory trust grants are not all the same–some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.
A further and often complicating factor is that granted and ungranted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible. Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use. Piers, wharves and warehouses that once served commercial
navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use. Historic public trust uses may have been replaced by new technologies. Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters. Public trust uses may and often do
conflict with one another. The state and local tidelands grantees, as administrators of their
10Illinois Central Railroad v. Illinois, supra, at 452-53.
respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices.
For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.
III. The Leasing of Tidelands
A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses. For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust. Leases for the construction of wharves and warehouses and for
railroad uses, i.e., structures that directly promote port developme nt, were approved early in the 20th century.11 Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets.12 Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as
appropriate uses because as places of public accommodation, they allow broad public
11San Pedro etc. R.R. Co. v. Hamilton (1911) 161 Cal. 610; Koyner v. Miner (1916) 172
Cal. 448; Oakland v. Larue Wharf & Warehouse Co. (1918) 179 Cal. 207; City of Oakland v. Williams (1929) 206 Cal. 315.
12Haggerty v. City of Oakland (1958) 161 Cal.App.2d 407, 413-414.
access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.13
These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project: (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands. Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation
and fisheries over those uses encompassing changing public needs.14
IV. Promotion of Trust Uses and Public Enjoyment of Trust Lands
13Id. at p. 414; Martin v. Smith (1960) 184 Cal.App.2d 571, 577-78.
14National Audubon Society v. Superior Court, supra, at p. 434.
Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or
foster commercial enterprises. Examples include oil production facilities, freeway bridges and nuclear power plants.15 Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways. The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.16
Nevertheless, the essential trust pur poses have always been, and remain, water
related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.17
Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands. These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide. Examples may include hospitals,
supermarkets, department stores, and local government buildings and private office
15See Boone v. Kingsbury (1928) 206 Cal.148, 183; Colberg, Inc. v. State of California ex rel. Dept. Pub. Work, supra, at pp. 421-22; and Carstens v. California Coastal Com. (1986) 182
Cal.App.3d 277, 289.
16Carstens v. California Coastal Com., supra, at p. 289.
buildings that serve general rather than specifically trust-related functions.
V. Mixed-Use Developments
17Joseph L. Sax, AThe Public Trust in Stormy Western Waters,@ October 1997.
Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use. While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons. These reasons simply make the development financially attractive to a developer. Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage. A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but
because it promotes a “commercial enterprise unaffected by a public use”18 rather than
promoting, fostering, accommodating or enhancing a public trust use.19 That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing. It is an evolving use that is responsive to changing public needs for trust lands and for the benefits
18City of Long Beach v. Morse (1947) 31 Cal.2d 254, 261.
19Haggerty v. City of Oakland, supra, at pp. 413-14.
these lands provide.20
Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants. Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.” This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.” Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with
the terms of the trust grants.
20National Audubon Society v. Superior Court, supra, at p. 434.
For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable. That is, unlike some environmental
contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts. To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses
while they remain useable for or susceptible of being used for water-related activities.21
VI. Incidental Non-Trust Use
All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use. Any structure designed or used primarily for a non- trust purpose would be suspect. Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project. The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure.22 In this context, the court noted
that because the real or main purpose of the structure was to promote public trust uses, non- trust groups could also use the facility, but the non-trust uses must remain incidental to the
21Atwood v. Hammond (1935) 4 Cal.2d 31, 42-43.
22Haggerty v. City of Oakland, supra, at p. 413.
main purpose of the structure.23 This is the state of the law, and it is supported by good policy reasons as well. If the test for whether a non-trust use i s incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses. Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and
parking garages likely being the dominant trust uses and structures being devoted to non- trust uses.
It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use.24 The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them. Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by- structure basis. Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use. If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non- trust tenants, provided that the non-trust use is incidental to the main purpose of the
VII. The Role of the Legislature
The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put. The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state.25 The Legislature has the power to authorize the non-trust use of tidelands. It has done so rarely, and then on a case- specific basis.26 Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.27
The Legislature has provided a statutory framework for the leasing of tidelands for
non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere
24National Audubon Society v. Superior Court, supra, at p. 440.
25City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 474.
26For example, in Chapter 728, Statutes of 1994, the Legislature authorized tidelands in
Newport Beach to continue to be put to non-trust uses for a limited term after it was determined that the tidelands had been erroneously characterized and treated as uplands by the city due to incorrect placement of the tidelands boundary.
27See, e.g., Boone v. Kingsbury, supra, at p. 183 and City of Coronado v. San Diego
Unified Port District, supra, at pp. 474-75; but see Mallon v. City of Long Beach (1955) 44
Cal.2d 199, 206-07, 212.
with (Long Beach) the uses and purposes of the granting statute.28 Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection. This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and
accommodate projects that must be located on, over or adjacent to the tidelands. These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.29
To ensure that the exercise of the Long Beach and San Francisco statutes is
consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small. Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the
28Ch. 1560, Stats. 1959; Ch. 422, Stats. 1975. These statutes also provide for, inter alia, the lease revenues to be used to further trust uses and purposes.
29Illinois Central R.R. Co. v. Illinois, supra, at pp. 452-54.
courts as tantamount to alienation.30
In several out-of-state cases, specific, express legislative authorizations of
incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions.31 One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where
legislation expressly permitted portions of the structure to be leased to private tenants for the production of income. Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue. In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building. The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port,
legislation authorizing the leasing to private tenants was valid.32 Although both cases
involve challenges to financing and condemnation statutes and do not involve the public
30Atwood v. Hammond, supra, at p. 42; see also Illinois Central R.R. Co. v. Illinois, supra,
at pp. 454-53.
31Lerch v. Maryland Port Authority (1965) 240 Md. 438; Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) 12 N.Y.2d 379.
trust, they are instructive because they demonstrate the importance to the courts, even in
the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.
VIII. Exchanges of Lands
Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are r are.33 In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust. Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust. Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on
navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and
reclaimed, and (2) have thereby been excluded from the public channels and are no longer
33National Audubon Society v. Superior Court, supra, at p. 440.
available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust. The grantee may thereafter make any use of the lands, free of trust restrictions.
In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the
lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange. Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.
In 2007, a band of American explorers recovered 17 tons of gold coins from a sunken Spanish galleon off the coast of ——. Today, the Eleventh Circuit ruled that the men surrender the treasure to Spain. For the opinion, go here.
Elizabeth O’Nan lives alone on an 80 acre “island” of land she owns in the middle the Pisgah National Forest in northwestern North Carolina. O’Nan is 86 years old. Her property is accessible only by a small forest service road, over which she holds an easement. In December of 2010, the Forest Service charged O’Nan with blocking that forest road, in violation of 36 C.F.R. § 261.12(d), because she told a hunter that she owned the road and he had no right to use it.
O’Nan proceeded prose before a federal magistrate judge and was convicted. On appeal to the district court, O’Nan raised a first amendment defense to the charge. She argued, in essence, that the rule is constitutionally infirm because it permits punishment of protected speech based on viewpoint — that is, speech excluding hunters from the road. The district court reviewed for plain error and affirmed. The case is now before the Forth Circuit.
O’Nan’s position goes something like this. When she told the hunter he had no right to use the road, she engaged in constitutionally-protected speech. If so, the district court mischaracterized her speech as criminal interference with the use of a road. In holding that O’Nan could be sanctioned for what she said to the hunter, the court conflated protected speech and criminal conduct. On this theory, the two are distinctly different: while an agency may criminalize physically blocking a service road, it may not criminalize speech, even when the purpose of the speech is to stop people from using the service road.
To prevail on this argument, O’Nan would have to distinguish her case from the line of cases in which the Supreme Court has permitted the punishment of speech as an “illegal course of conduct.”
II. Discussion: Speech as an Illegal Course of Conduct
A. 36 CFR s. 261.12(d)
The road-blocking rule is a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. It was triggered against O’Nan by what she communicated. So we might call the rule content- based as applied, because the content of her speech triggered its application. This mechanism does not just restrict some speech more than other speech–most content-neutral laws do that. Rather, the rule applies to speech precisely because of the harms that supposedly flow from the content of the speech: threatening to have the hunter arrested for trespassing violated the road-blocking rule because it interfered with his use of the road.
In 1998, an Idaho district court upheld this regulation against a First Amendment challenge. The Ninth Circuit affirmed without comment. That case involved an environmental protestor who physically blocked traffic on a logging road. The protestor, Scranton, was found perched on top of a tripod structure in the center of the Forest Service road. The tripod stood thirty feet tall; near the top of the tripod a plywood platform supported Scranton. Forest Service officers used a “cherry picker” to elevate themselves to the platform level. As they did so, Scranton placed her arms inside a welded, L-shaped metal pipe attached to a tripod leg. She told the officers that she would not quit the tripod “until the logging stopped.” Forest Service officers attempted to remove Scranton’s arms from the pipe. When their efforts proved unsuccessful, they cut the strap securing the pipe to the tripod leg. After approximately twenty minutes, Scranton announced that her arms were going numb and that she was willing to leave the tripod platform. She was then removed and arrested.
Scranton argued that the language of the rule was unconstitutionally vague, and that a facial challenge was warranted because the rule implicated constitutionally protected conduct. The district court disagreed. First, it determined that the rule’s prohibition of “blocking, restricting or otherwise interfering” with the use of a Forest Service road did not reach a substantial amount of constitutionally protected conduct. Second, the court found that the regulation did not prevent the expression of First Amendment conduct in a multitude of other, lawful ways. Therefore, Scranton’s vagueness challenge had to be “examined in the light of the facts at hand.” Scranton’s conduct clearly fell within the scope of the regulation – she blocked the Forest Service Road by maintaining a giant tripod in the roadway.
By contrast, O’Nan’s conduct involved only speech. This difference, however, may not be enough to distinguish her case from the Supreme Court’s “speech as an illegal course of conduct” jurisprudence.
“It has never been deemed an abridgement of freedom of speech,” Justice Black wrote for the Court in Giboney v. Empire Storage & Ice Co., “to make a course of conduct illegal merely because the conduct was in part carried out by means of language.” In subsequent opinions, the Court has characterized Giboney as stating that speech may be punished when it’s “brigaded with illegal action.” The Fourth Circuit described the Giboney principle as authorizing speech restrictions when the speech is tantamount to a “speech act.”
Giboney upheld an injunction against peaceful picketers who were trying to pressure a business “to agree to stop selling ice to nonunion peddlers.” Such an agreement, the Court said, would have violated antitrust law; therefore, enjoining such picketing did not violate the First Amendment. But the Giboney argument has also been used to justify a wide variety of speech restrictions:
(a) The DOJ and a court of appeals have recently reasoned that Giboney lets the government restrict books that may inform people how to violate the law, at least when the publisher intends that those books help people commit crimes. This “speech act” rationale goes something like this. If the speech in question is an integral part of conduct that the government otherwise is empowered to prohibit, it typically may be proscribed, since it is merely incidental that such “conduct” takes the form of speech.
(b) The Supreme Court described Giboney as supporting the proposition that “[a] man may be punished for encouraging the commission of a crime.” The Court cited as an example a 1915 case that upheld the punishment of a newspaper editor who endorsed nudism.
(c) Some courts have recently used Giboney to defend restrictions on doctors’ recommending medicinal marijuana to their patients.
(d) Courts have similarly used the “conduct not speech” argument to justify restricting speech that creates an offensive work environment.
(e) Judges have relied on Giboney to support restrictions on speech that urges political boycotts aimed at pressuring governments to change their policies.
(f) The dissent in Cohen v. California cited Giboney to argue that wearing a jacket containing the phrase “Fuck the Draft” should be constitutionally unprotected: “Cohen’s absurd and immature antic . . . was mainly conduct and little speech.”
These applications of Giboney seem confusing. This might be because the logic of Giboney itself is pretty confusing, and inconsistent with the logic of the more recent Supreme Court cases like Cohen, Brandenburg , and Claiborne Hardware. In particular, there are at least three different interpretations of Giboney’s ambiguous language that might bear on O’Nan’s first amendment claim, but none of them makes much sense.
1. “Course of Conduct” Referring to the Noncommunicative Harms of Speech
Modern Supreme Court case law has recognized a sort of conduct/speech distinction. Speech may be restricted because of harms flowing from its noncommunicative component (noise, obstruction of traffic, etc.)–which we might think of as a “conduct” element–but not because of harms flowing from its communicative component, the “speech” element. But this can’t be the distinction Giboney or the above cases that cite Giboney are using, or that could justify O’Nan’s conviction, since those cases all involve speech that’s restricted because of harms that flow from its content.
2. Illegal Course of Conduct Meaning Speech that Itself Violates a Law
Maybe we could explain the opinions that rely on Giboney by reasoning that the speech itself–picketing to achieve a certain result, publishing a book describing how to commit a crime, threatening hunters to stop them from using the forest road–violates a law, and in that sense becomes an illegal “course of conduct.” On this theory, speech that amounts to the commission of an independently illegal act, such as bribery, perjury, and some threats, is constitutionally unprotected because it “is properly treated as action, even if it consists solely of words.”
But the point of modern First Amendment law is that speech is often protected even though it violates a law restricting it. Public profanity (as in Cohen ), speech that violated a Sedition Act , and speech “encouraging the commission of a crime” (as in Cox ) would indeed be illegal courses of conduct under laws that prohibit such speech. Such laws, though, are obvious speech restrictions, and courts rightly evaluate them–and often strike them down–under the First Amendment.
A threat is no less speech, and no more action, than was speech that violated the Sedition Act. A threat is speech in a particular context, such as the beliefs O’Nan had about her property rights, but it is still communication that is punished because of what it communicates. Certain kinds of threats are clearly punishable, but only because they fall within an exception to free speech protection and not because they are somehow not speech.
3. Illegal Course of Conduct Meaning Speech That Violates a Generally Applicable Law
O’Nan’s conviction, like many cases the Giboney line, might best be explained on the grounds that the speech violates a generally applicable law that bans a wide range of conduct.183 On this interpretation, speech should be treated as conduct when it has the same harmful effects and it is covered by a generally applicable law that restricts all conduct that has those effects. This sort of argument, though it would support the application of the road-blocking rule against O’Nan, would reduce the Giboney principle to an approval of speech restrictions that are content-based as applied.
This point is not a trivial one. Such an interpretation of Giboney cuts against the very purpose of the content based / content neutral distinction: allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions. Because a content-neutral law – for instance, a leafleting ban — can potentially apply to a wide range of speakers, it can’t even come close to driving certain views entirely from public debate.
On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co. , bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion–the draft is evil, blacks should boycott white-owned businesses– would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. O’Nan could not persuade hunters not to use the road in any way – she could not send this message with pamphlets, or on the radio. She could not write it on a billboard or post it on a blog. Her message would always be illegal, because it could have the effect of discouraging the use of the road.
The Court has confronted cases where a law was content-based as applied. In these cases, either the Court held that the speech was constitutionally protected, or–if it held otherwise–the decision is now viewed as obsolete.
The Court’s the World War I-era cases Debs, Frohwerk, and Schenck, upheld the criminal punishment of antiwar speech. In those cases, the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct–speech or not–that “willfully obstructed the recruiting or enlistment service of the United States.” These cases are now generally seen as wrongly decided. Under modern First Amendment law, courts would overturn convictions for antiwar leafleting or speeches, and would treat the law as content-based, because it is the content of such antiwar speech that causes the interference with the draft.
More broadly, if generally applicable laws were immune from First Amendment scrutiny, the government could suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal conduct, praise of illegal conduct, and even advocacy of legal conduct. For example, a general ban on “assisting, directly or indirectly, conspiracies to overthrow the government” could prohibit advocacy of overthrow as well as physical conduct like making bombs: Advocacy could assist by persuading people to join the rebellion. A ban on “assisting interference with the provision of abortion services” could ban speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.
The speech in these examples, like O’Nan’s speech, could bring about the harms that the generally applicable law is trying to prevent. O’Nan’s speech may interfere with the use of the road, an effect that is unquestionably punishable if it were brought about by a giant tripod structure rather than communication. But the idea behind the rejection of Schenck, and of the adoption of the Brandenburg v. Ohio rule , is that the government must generally tolerate speech even when its persuasiveness or the informational content could lead to eventual harm.
Similarly, in NAACP v. Claiborne Hardware Co. the Court held that speech constituting tortious interference with business relations may nonetheless be constitutionally protected. Tortious interference covers a variety of conduct, not just speech. But when the interference flows from the persuasive or informative effect of speech–for instance, when the speech in Claiborne Hardware persuaded people to boycott a business, publicized the names of people who weren’t complying with the boycott, or persuaded others to ostracize people who refused to join the boycott– courts treat the tort as a speech restriction.
In short, O’Nan faces an uphill battle. Her speech did not express a view on a topic of public debate. Rather, she made a purposeful threat that misrepresented the law and interfered with a public right. Because her threat was likely to have the same harmful effects as a physical impediment blocking the road, the court will probably classify her speech as an illegal course of conduct.
O’Nan’s best argument is that because the regulation is content-based as applied to her, it should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Her speech does not fall clearly into an exception to protection, so the presumption may only be rebutted if the restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.
Since their profits depend on making sure they end up on the right side of every transaction, insurance companies are proxies for all kinds of modern dilemmas.
For example, when they started factoring global warming in their underwriting, even as America was neck deep in a useless and political argument, it was a sign that their mathematicians had already decided it was a real problem.
This week, the folks from Virginia Uranium held an editorial board meeting for the Hampton Roads newspaper right before their appearance before the Virginia Beach City Council.
They were there to debunk the city-sponsored study showing that uranium mining in Pittsylvania County could imperil the water supply for a million people in Hampton Roads.
A Virginia Uranium-sponsored counterstudy concluded instead that the risk was “essentially zero.”
Which raises the question: If there’s no risk, it should be easy to buy insurance to guarantee the people of Virginia clean water.
That is, after all, how insurance works. If there’s no risk, there’s almost no cost to insure against it. When a star insures her physical assets, for example, the cost of that publicity stunt is low because the risk is, too.
Virginia Uranium’s representatives spent almost an hour explaining how the Virginia Beach study got it all wrong.
How there’s no way that their mine could lead to contamination in the city’s water. That not even a hurricane could wash mine tailings into the reservoir.
That’s when one reporter asked the insurance question: So, would you like to buy a policy?
It was an absurdist question with a real point: Put your money where your risk analysis is.
But Walter Coles Jr. and the scientist who reached the zero risk conclusion, Alan Kuhn, looked uncomfortable.
That’s not how these things work, they responded. That’s a regulatory issue. Companies don’t insure populations from risk.
We could get rid of all that pesky regulation if corporations like Virginia Uranium would shift the risk from taxpayers to themselves. If companies would pay the real cost of the dangers they present. If they would insure bystanders against the catastrophes they might cause.
That’s about when the earthquake shook from a fault a few miles from the North Anna Nuclear Power Station. I’m sure there was no connection.
Uranium mining and milling produces massive amounts of toxic waste. Virtually all uranium mining in the U.S. has occurred in sparsely populated regions of Nevada and New Mexico, where rainfall is often below 15 inches per year. Still, according to the EPA, tailings have contaminated the groundwater at almost all U.S. mill sites. In a rainy state, like Virginia, the toxic runoff would pose an unprecedented danger. According to the EPA,
Water is perhaps the most significant means of dispersal of uranium and related …[radioactive materials] in the environment from mines and mine wastes….Uranium is very soluble in acidic and alkaline waters and can be transported easily from a mine site.
Uranium’s radioactive components, particularly radium and radon, are highly soluble in water, which would be a dangerous experiment for a state like Virginia with over 42 inches of rain per year.
Fans of uranium mining acknowledge that uranium mining has had “shameful legacy in terms of human and environmental devastation.” As noted by the Natural Resources Defense Council in recent comments to the Nuclear Regulatory Commission:
The history of uranium recovery and management in the United States (and, indeed around the globe) is replete with environmental damage, serious worker safety and health abuses, and harm to entire communities….Additionally, most of the environmentally damaged sites have not received adequate cleanup of past harms, and for what little cleanup has been done, most of the cost has been borne by taxpayers rather than the companies and associated beneficiaries of the uranium mined.
In “Exposure Pathway and Health Effects Associated with Chemical and Radiological Toxicity of Natural Uranium: A Review,” (2005) Dr. Doug Brugge and others at the Tufts University School of Medicine noted:
Currently, the EPA lists 23 National Priorities List (NPL) sites where uranium is a contaminant of concern …. Uranium, however, is explicitly excluded from the scoring system that is used to place sites on the NPL precluding most abandoned mines from being listed.
For more about environmental and human health impacts from different types of mining, even after studies promised minimal or no impact, go here.
Numerous health problems are associated with uranium and its associated decay products. These include cancer from radon, birth defects and kidney problems from uranium, bone cancer and leukemia from radium, and lung and skin cancer from arsenic.
According to the EPA website
There are four principal ways (or exposure pathways) that the public can be exposed to the hazards from this waste.”
“The first is the diffusion of radon gas directly into indoor air if tailings are misused as a construction material or for backfill around buildings. When people breathe air containing radon, it increases their risk of developing lung cancer.”
Second, radon gas can diffuse from the piles into the atmosphere where it can be inhaled and small particles can be blown from the piles where they can be inhaled or ingested.”
“Third, many of the radioactive decay products in tailings produce gamma radiation, which poses a health hazard to people in the immediate vicinity of tailings.”
“Finally, the dispersal of tailings by wind or water, or by leaching, can carry radioactive and other toxic materials to surface or ground water that may be used for drinking water.”
In 2007, the Colorado Medical Society resolved that it “opposes the practice of in-situ and open pit mining of uranium due to the adverse health impact of radioactively contaminated water on our agriculture, livestock and civilian population.” In his 2007 testimony before Congress, Dr. Brugge described “uranium ore … [as] a toxic brew of numerous nasty hazardous materials.”
According to the EPA’s TENORM Report, “Water is perhaps the most significant means of dispersal of uranium and related [radioactive materials] in the environment from mines and mine wastes…Uranium is very soluble in acidic and alkaline waters and can be transported easily from a mine site.” This is bad. No state in which rainfall exceeds evaporation has ever allowed uranium mining within its borders. If Virginia allows uranium mining, it would be the first.
Water is used (and contaminated) in the milling process. In addition, rain falling on waste products from the mining and milling processes picks up radioactive and other toxic elements which can end up and remain in surface and ground waters for thousands of years. In the 1980s, Marline Uranium estimated that the waste pile from their proposed Virginia operation would cover 930 acres, 100 feet deep.
Mining and milling the proposed Coles Hill site in Pittsylvania County would generate hundreds of acres of radioactive waste and contaminate millions of gallons of water. To mine uranium safely, hundreds of millions of gallons of contaminated and radioactive water will have to be prevented from running into Virginia streams or leaching into the ground water. Virginia’s most populous communities lie downstream of the uranium leases filed in the 1980s.
Virginia’s Acute Rainfall Events
Not only does the Virginia Piedmont have greater annual rainfall than other uranium mining communities, it also has greater acute rainfall events. Two of the top five most intense 12-hour storms in the United States occurred in the Virginia Piedmont.
Map of 12-hour storm events.
Twenty-seven inches of rain fell on Nelson County in 1969. Twenty-nine inches fell in Madison County in 1995. Significant flooding also happened in Pittsylvania County in 1996 during Hurricane Fran.
View home video footage & map of the flooding event.
As noted by Elizabeth Haskell in her dissent to the recommendation of the Uranium Subcommittee/Uranium Administrative Group: “In Virginia’s wet climate where water is discharged from the site and filters through tailings, the transmittal of radiation to people through streams and the groundwater is a major issue.”
This experiment should not be conducted on Virginia. Virginia should take no action to initiate or sanction a study of uranium mining until the proponents of mining provide reviewable information demonstrating that mining and milling have been undertaken in five places with climate, geology, and population density similar to Virginia and in such a manner as to safeguard the environment, natural and historic resources, agricultural lands, and the health and well-being of citizens of those communities.
Uranium Mining Maps
Here are some maps related to uranium mining in Virginia, courtesy of the Piedmont Environmental Council.
Counties with Former Uranium Mining Leases in the Virginia Piedmont
Map showing counties with former uranium mining leases located in Virginia’s Piedmont.
Drinking Water Sources Downstream from Proposed Coles Hill Uranium Mining Site
Map showing drink water sources located downstream from the proposed Coles Hill Uranium Mining site.
Former Uranium Mining Leases in Pittsylvania County, Virginia
Map showing former uranium mining leases in Pittsylvania County, VA.
Properties with Former Uranium Mining Leases and Downstream Water Supplies – Southside Region
Major water supplies in Southside are located downstream from properties with former uranium mining leases. There are major safety concerns over mining uranium in wet climates such as Virginia’s, which could have disastrous effects on water supplies.
Properties with Former 1980s Uranium Mining Leases and Downstream Water Supplies – Piedmont region
Major water supplies in the Piedmont are located downstream from properties with former uranium mining leases. There are major safety concerns over mining uranium in wet climates such as Virginia’s, which could have disastrous effects on water supplies.
Properties with Former 1980s Uranium Mining Leases and Downstream Water Supplies-Impact on Frederickburg
Map showing former uranium mining leases and downstream water supplies in Virginia near Fredericksburg.
Proposed 930-acre uranium tailings storage View 1, 2 and 3
Maps showing a proposed 930-acre uranium tailings storage, overlayed on a map of downtown Richmond, Virginia.
Potential Uranium in Virginia
A map showing potential uranium located in Virginia.
Water Supplies Potentially Impacted by Uranium Mining
View water supplies in the Piedmont and Southside regions of Virginia that would be potentially impacted by uranium mining. This map also includes properties with former uranium mining leases.
In the 1980s, uranium leases were filed on thousands of acres of land in Virginia including Fauquier, Orange, Culpeper, and Madison Counties, stretching along the Piedmont to Pittsylvania in Southside Virginia. At that time, the Commonwealth undertook an extensive study of uranium mining. It was costly, time consuming, and divisive. When it was over, the General Assembly and Governor decided it was in the best interests of the people to maintain a moratorium on uranium mining in Virginia.
A new corporation, Virginia Uranium, Inc., is seeking to lift the moratorium. Although the primary focus on the uranium debate has been on the Coles Hill site in Pittsylvania County, most of Virginia’s population would be impacted by uranium mining, especially areas downstream or downwind of mining sites.
There are three forms of uranium mining: open pit mining, deep mining; and in situ leaching. Open pit mining creates large holes dug into the ground to remove the ore and waste rock which impedes ore extraction. This method is frequently used when the desirable ore is close to the surface. The mining operation planned in Pittsylvania County in the 1980s would have been a 110-acre hole, 850 feet deep. Deep mining creates shafts dug into the ground to reach ore at deeper levels. In the last decade, in situ leaching has become more widely used. In situ leaching uses a solution that is injected into underground uranium deposits to extract the uranium from the other minerals. The liquid, now pregnant with uranium, is pumped to the surface where the uranium is taken out of the solution. This process is repeated until all of the uranium is extracted. Information available to PEC indicates that pit mining most likely will be used in Pittsylvania with the possibility of some deep mining, as well.
Uranium milling involves extracting uranium from mined ore. The ore is crushed into sand size particles and the uranium is leached out. The uranium then is precipitated out of the leaching solution and dewatered, dried, and packaged. Through the extraction process, uranium is concentrated into a product referred to as “yellowcake.” In situ leaching is a combined mining and milling operation.
Enormous quantities of radioactive waste are generated by uranium mining and milling, with only 2 to 4 pounds of concentrated uranium oxide yellowcake obtained from each ton of ore taken out of the ground. The resulting waste, or tailings, contain 85% of the original radioactivity and remain radioactive for hundreds of thousands of years. Tailings can contain several hazardous substances, including radium (which decays to produce radon) selenium, molybdenum, uranium, and thorium. The mill tailings and the mill tailings effluent are highly radioactive and acutely hazardous. The Congressional testimony of Dr. Doug Brugge, of the Tufts School of Medicine, described uranium ore “as a toxic brew of numerous hazardous materials.” For the full transcript of Dr. Brugge’s testimony, go here.
According to EPA’s Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) document, most tailings piles are located in arid areas of the western U.S where low precipitation decreases the potential for water contamination.
Still, even out West, there are problems with water management around uranium mines. Because uranium is highly soluble, surface and ground water are the most significant means of dispersal of uranium and technically enhanced naturally occurring radioactive materials from mines and mine wastes. Water coming into contact with these wastes must therefore be treated or contained – millions of gallons of water for thousands of years. Read more about water management in the TENORM document, above.
Radioactive Properties of Key UraniumIsotopes, U.S. Department of Energy, Argonne National Laboratory, EVS, August 2005.
The National Research Council is involved in a study to examine the scientific, technical, environmental, human health and safety, and regulatory aspects of uranium mining, milling, and processing as they relate to Virginia. The purpose of this study is to assist the Commonwealth in determining whether uranium mining, milling, and processing can be undertaken in a manner that safeguards the environment, natural and historic resources, agricultural lands, and the health and well-being of its citizens.
The study results are not due out until December 2011. Yet, Virginia Uranium, the company that was the main proponent of the study, has announced that it is already preparing legislation to lift the uranium ban during the next session of the General Assembly.
This suggests that the study is only a pretext for Virginia Uranium. Virginia Uranium, their lobbyists and their friends in the General Assembly appear ready to move forward, no matter the cost to Virginia’s health and environment.
During storms like this weekend’s Hurricane Irene, trees often fall from people’s yards into their neighbors’. Which raises the question: is the person whose tree fell into her neighbor’s yard is liable for any resulting damage? The answer varies somewhat from state to state. But as a general rule, the owner of the tree is not liable in such cases unless he or she was somehow negligent in caring for it. If a “reasonable person” could foresee that the tree or a branch was likely to fall and cause damage that the owner could have readily prevented, there might be liability. In most cases, however, the owner is not liable, especially if the tree was knocked over by an “act of God” like a storm. Findlaw has a helpful explanation here, as well as a discussion of other property law issues arising from trees.
Even if you believe you do have a good case against your neighbor, you should think carefully before you start a lawsuit over a fallen tree. Given the high cost of litigation, the money you win might not be much more than what you end up paying the lawyers — unless the damage is really severe. The loss of time and aggravation inherent in suing are also relevant costs, even if nonmonetary ones. And then there’s the cost of damaging your relationship with your neighbor, which is especially important if you plan to live in the neighborhood for a long time. In most cases, it’s worth trying to settle your dispute with a neighbor informally instead of going to court.
As an attorney, it’s probably against my interest to encourage people to think twice about suing over minor property disputes. But it’s good advice nonetheless. And part of being a good property lawyer is knowing when to tell your client that a lawsuit may not be the best course of action for them.