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Journal of Political Ecology: 
Case Studies in History and Society



VOLUME 7 (2000)

Who Owns America? Social Conflict over Property Rights, Edited by Harvey M. Jacobs, Madison: University of Wisconsin Press (1998) xvii, 268 pp.

Reviewed by R. Quentin Grafton, Director of the Institute of the Environment, University of Ottawa, Ontario, Canada

The provocative collection of essays in Who Owns America? addresses three major questions: Who has property rights over land in America? How are these rights exercised? And, Why do Americans have the property rights structure they do?

The book is a collection of 12 essays on property rights over land in America, with an introduction and conclusion. In the words of the book's editor, Harvey Jacobs, the essay collection addresses not the form of ownership regarding land but the motivations that drive ownership.

Chapter 5 of the book by Wiebe, Tegene and Kuhn comes closest to answering the question, Who owns America's land? Twenty-nine percent is in Federal control (with an additional 2 percent held in trust for Natives), nine percent is state and local government control and 60 percent is in private ownership. Clearly, such a breakdown misses important aspects of property rights, namely how are these rights exercised by governments and private land-holders? Moreover, how did the US arrive at its current structure of ownership and tenure? Fortunately, a concise review by Wiebe, Tegene and Kuhn gives the reader an historical overview from the very beginnings of the US. An historical perspective is also provided by Last's interpretation in Chapter 3 of what Thomas Jefferson's views might be about the private/public conflicts of rights and responsibilities, and also in McEvoy's highly informative synopsis in Chapter 6.

Underlying all the essays is the dichotomy between private and social costs and benefits. If the private costs (and benefits) for land use were identical to social costs and benefits, the question of land ownership would simply be a matter of equity. The fact that private and social costs diverge is the basis for the internalization of environmental spillovers inherent in the public regulation of private land. The recognition of this need has been well known for a long time, and was addressed by Aristotle in some of his writings and is argued by Bromley in the book's first chapter. Indeed, Bromley goes further and argues that social ownership to land is required to overcome the private versus social cost dilemma of land use.

The issue, however, is not so much ownership of America's land but whether the external costs imposed on others from private or public land-use are reflected in their decisions. For example, a private land owner who chooses to convert wetlands to agricultural use imposes costs on others if wetland habitats are critical for, say, nurseries for fisheries or biological diversity. Unfortunately, social or public ownership does not itself ensure the dichotomy between private and social costs is reflected in decision-making. For instance, McEvoy in chapter 6 describes the case of Lyng versus The Northwest Indian Cemetery Protective Association. In this example, the US Forest Service was the custodian for public land and won its case to build a logging road, despite the fact that this imposed very real costs on the 5,000 or so members of the affected Native Americans who used an area along the road's planned route for religious practices.

Increasing conflict between the private rights and broader notions of public rights is detailed by Geisler and Bedford in Chapter 8 in terms of ecosystem management, and by Gilbert and O'Connor, who, in Chapter 7, review the travails of the federal government over land in the period 1933-1965. They observe that a growing public awareness of the benefits provided by ecosystem management is putting greater pressure on decision-makers to constrain the actions of private landowners that may be detrimental to the public good. The fundamental issue, however, is not so much who (public or private or communities) owns the land but how those rights are exercised.

Environmental problems often ensue when common-law rights are abrogated or ignored. In this sense, an individual has no greater right to affect the use rights of others (that do not impinge on the rights of other persons) than does the state. Thus, a land owner (public or private) who imposes significant costs on society and impinges on the property rights of others should desist or pay compensation for the privilege. Take, for example, the conversion of wetlands to agricultural land. If this imposes significant costs in terms of ecological services values, or risks in terms of species extinction, then such conversion abrogates the common-law rights of others. Thus, in a view contrary to the "wise use" movement, private (and public) land-owners imposing such costs on others should face civil suit for their actions. Conversely, if private land owners undertake actions that generate benefits for other, for example by restoring wetlands, then the costs of such activities should be supported where the benefits merit it. Moreover, a common-law approach runs counter to the 1988 Executive Order 12,630 described in Chapter 4 by Richard Castelnuovo designed to prevent unplanned "takings" of private property by the Federal Government. In a sense, a common-law interpretation of property rights turns the notion of takings on its head in that private, and indeed all, land owners are liable for "takings" that impinge on the public good. In other words, the imposition of costs on others (be it wetland conversion or by other actions) represents a trespass on the property rights of others. The relative merits, or otherwise, of the "wise use" interpretation is further explored by Harvey Jacobs in Chapter 2.

No system of property rights exists in a cultural vacuum. Chapter 9 by Salamon explores these issues, as does Trosper in Chapter 11 from the perspectives of community rights and Native Americans. The contrast between private and native/community rights is important because Native Americans have developed durable property rights structures to ensure the long-term sustainability of natural resources. Indeed, the notion of planning for seven generations, common in the philosophy of traditional Native American views of management, provides a social more that helps overcome private incentives that may be at the cost of the public good.

The volume is completed with two interesting case studies. Heasley and Guries in Chapter 10 and Gaventa in Chapter 12 both provide examples that describe the contributing factors to the private and social cost dichotomy of land use. Moreover, both essays emphasize the importance of communities and social structures in helping to overcome land misuse and the importance of detailing the specifics of land use to be able to effectively address conflicts.

As with all interesting books, the 12 essays leave us with more questions than they answer. This is as it should be. Anyone interested to contributing to the debate about landownership in America should, and indeed must, read this provocative collection.