Celebrate the 82nd Anniversary of the Kinder Trespass!

It was 82 years ago last week that 400 men of the British Workers Sports Federation marched up to Kinder Scout, a bleak moorland plateau in Peak District of England. The march was an act of civil disobedience to protest the lack of legal access to “ramble” on open lands. As the trespassers scrambled up toward the Kinder plateau, they encountered the Duke of Devonshire’s gamekeepers.  What happened next is the stuff of grand lore in British rambling: 

In the ensuing scuffle, one keeper was slightly hurt, and the ramblers pressed on to the plateau. Here they were greeted by a group of Sheffield-based trespassers who had set off that morning crossing Kinder from Edale. After exchanging congratulations, the two groups joyously retraced their steps, the Sheffield trespassers back to Edale and the Manchester contingent to Hayfield.

As they returned to the village, five ramblers were arrested by police accompanied by keepers, and taken to the Hayfield Lock-up. The day after the trespass, Rothman and four other ramblers were charged at New Mills Police Court with unlawful assembly and breach of the peace [and]….were found guilty and were jailed for between two and six months.

The arrest and subsequent imprisonment of the trespassers unleashed a huge wave of public sympathy, and ironically united the ramblers cause.   A few weeks later in 1932 10,000 ramblers – the largest number in history – assembled for an access rally in the Winnats Pass, near Castleton, and the pressure for greater access continued to grow.

On the 75th anniversary of this act of civil disobedience, in 2007, Lord Roy Hattersley described the “Kinder Trespass” as “the most successful direct action in British history" (unless you want to count Gandhi's quite larger direct actions as part of British history!).  (Here is The Guardian’s account of the Trespass in 1932.) 

Why did this event have such an impact on British consciousness that it is still celebrated – and remains controversial in some quarters? 

Because it was about the legitimate scope of private property rights. The Kinder Trespass was intended to point out how unfair and anti-social private land ownership laws were, and how they constrained the public's “right to ramble."

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Joseph Sax’s Quest: Legal Protection for Collective Interests

Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.

In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources.  He asked:  “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.

The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.

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Mary Wood’s Crusade to Reinvigorate the Public Trust Doctrine

In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law.  In Nature’s Trust:  Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues:  “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.”  Our current regulatory system will never solve our problems.  She continues:

"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws.  Only a transformational approach can address sources of legal decay."

Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations.  For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia.  She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife. 

In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article.  For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone.  The focus was especially on beachfronts, lakes and riverbanks, and on wildlife.  But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge.  They complained that the public trust doctrine should take a backseat to environmental statutes.  Or that the doctrine should apply only to states.  Or that it applies only to water and wildlife, and not to other ecological domains.  And so on.

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