21 April 2010
The Commons
(Boston Commons)
Ray is an old pal of mine, and the most learned Master Chief Bos’uns Mate you will ever have the pleasure to meet.
He is not a Navy man; he would sneer at that. He has all his commercial papers and is a real Mariner, a commercial one, in addition to being a proud veteran of the United States Coast Guard.
He took a swig of his Bud and said “You have actually hit upon something much larger than oil and gas law, or the law of capture. Welcome to the edge of the "Commons."”
I looked at him with a thin smile. “Even a blind pig finds an acorn once in a while, Boats. I was just interested in oil and gas being outside the heavens-to-core of the earth theory of law. There is so much I don’t know that it quite staggers me sometimes. Imagine natural gas being considered to be the same as a wild animal, subject to capture, wherever you find it.”
“That is why my interest in the field is so profound. You got into it with the concept of “capture” in oil and gas law, and at least some of that is connected to the notion of common land. It goes back to England, though places like Boston Common, and comes to us through cattle wandering around the range through the winter. The Johnson County War in Wyoming arose from that, and from a really bad winter in 1886, and that is what brought the matter to a head. The question is wide open territory, and it is rising again in the remaining wild places on the planet.”
We were sitting outside at Willow, my favorite watering hole. It has been cold in Virginia, and we wanted to talk. The chill kept most people away from the patio, but I wanted to be expansive. I think it is funny that the state that invented addiction to nicotine no longer allows you to smoke inside.
Ray looked pensive. He is a coon-ass from New Orleans, and the chill weather up here does not agree with him. He is doing one last government job to fill out the retirement, and the naivety and arrogance of the kids he works with grinds on him.
“What you got into about elk and cattle and oil and gas is part of a vast body of law; international, national, state, or provincial, tribal, and municipal, or county.” He said. “It deals with a wide variety of issues from navigation rights to water rights, to the regulation of the electromagnetic spectrum, the sea floor, the Antarctica continent and near space.”
“The polar areas and the oceans are the equivalent of Wyoming in the 1880s.- the last open common areas of the world. The Outer Continental Shelf used to be the limit of what we could exploit, but now technology now makes the sea floor beyond it available for mineral and gas extraction.”
“I don’t know about climate change- a cold winter in 1886 filled off the open range in the American west- but if the climate is warming and the ice recedes, we have to be prepared with a legal construct for what is going to happen.”
I stubbed out my cigarette under the wrought iron table. “The Russian shenanigans with planting their flag at the bottom of the ocean is part of it, right, setting up new claims for sovereignty?”
“You got it,” said Ray. “With the Antarctica treaty aging, with the Arctic Ocean opening to navigation and low earth orbits becoming cluttered with junk, and the electromagnetic spectrum seemingly too small for the increasing demand, the regulation of the commons is the number one legal issue of the planet.”
“I imagine that is going to cause problems. In Wyoming, it came down to gun-play between the small ranchers and the big boys.”
Ray nodded. “Competing claims in the commons has long been a source of armed conflict, private as in the oysterman wars between Maryland and Virginia watermen that extended into the 1930s, or the shrimper wars of Louisiana which occurred into the 1970s.: He leaned back, looking at the people hurrying along beyond he railing of he Willow patio.
“I participated in as "peace keeper" from the deck of the USCG Cutter Point Spencer trying to keep the good old boys from shooting the Vietnamese immigrant fishermen. The Johnson County War is part of the same deal- conflict between non-state entities in common areas. It blows my mind that we still do not have a workable regulation of the commons. Some folks are looking at the wisdom of ancient tribal law, both American and Polynesian.”
Peter came by and I ordered another whiskey. When Ray is on a roll, it is important to stay with him.
“The American Indians had little in the way of real estate law. They viewed the land itself as part of the commons. Modern geology teaches us that land is plastic and not permanent. We have evolved laws of accretion and erosion, but in the long term these are not enough. Especially where the land changes.” He waved his right hand energetically “Just look at the migrating alluvial landscapes of Maryland's Eastern Shore. Shoot, thousands of acres in Louisiana change hands in the course of a single year due to natural causes of erosion and accretion.”
“Point taken,” I said. “The land is just not as permanent as European legal thought processes first envisioned it. The hills are not forever.”
“You got that right. We have learned of late that all those supposedly "uninhabited" small islands in the Pacific were actually outlying agricultural plots of Polynesian villages, permanently located on larger islands with abundant fresh water sources. The tillers of the cocoanut groves, guava patches, and fishers of the nearby reefs were ferried there regularly by the "pilots" of ancient Polynesia. The "pilots" were such a valued member of the Polynesian society not because they were explorers and leaders of migrations, though they did that, but as a regular and important components in annual agricultural and fishing cycles which included the gathering and transport of food items held in common by the society on their "uninhabited" outer islands. They were part of the commons.”
“So that applies to the Moon, too? They say the latest experiments demonstrate there are water reserves up there.”
Ray cleared his throat, ready to pounce on the issue. “At the far fringe of legal writers you will find people beginning to think of it. There is speculation that uninhabited planets within our solar system will be regulated like the Polynesians handled their outer islands. Indeed, the farthest fringe speculates that this is the rule of any existing space faring planets, that in planetary systems there is rarely more than one planet inhabited by intelligent life. That planet owns the outer planets of its system or shares these with any second planet having intelligent life. We are probably known to any such civilizations and they have not only respected our privacy to a large degree on our home world, but they have refrained from establishing productive enterprises or permanent bases on our outer planets in observation of some galactic legal principle that is reflected in the Polynesian handling of the outer islands”
We had traveled a long way from Johnson County in only two drinks, and I considered having a this.
“Ray, if they are out there, I doubt we will ever be contacted until we have industrial bases on some of our outer planets, and are seen as observing this universal principle of the law of the commons.”
“Yep. Follow the thread of the commons and you end up pretty far out. It is so much more fun than personal injury law and ambulance chasing. I am not going to get rich doing it, though. Not in this lifetime, anyway.
Copyright 2010 Vic Socotra and AABMain
www.vicsocotra.com <http://www.vicsocotra.com>
Ray has written for the American Admiralty Bureau's Guide to the Enduring Principles of International Maritime Law (ISBN 1-879778-28-9 copyright 1996, Marine Education Textbooks) and AAB Commentator Volume 4 : "A Common Highway", Comments on Navigability and Public Rights on the Navigable Waters of the United States ( ISBN 1-879778-79-3, copyright 1999 , Marine Education Textbooks), so I take him at his word.
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