Federal Grazing Policy, 1891-1950

Harold Ickes (center); Edward Taylor (left) LC

[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some regulatory regime I did not cover in class and ask students to compare it with the ones we did.  The topics of previous essays include motor carrier regulation, meat inspection, and the US Commerce Court.  This year’s essay, on federal grazing policy, follows.  Dan Ernst.]

The federal government once owned all the land in the continental United States, except for the original thirteen colonies and Texas. It disposed of most of the land in the East and Midwest through land sales, overseen by the General Land Office (GLO), an agency within the Department of the Interior.  After the passage of the Homestead Act of 1862, Americans could obtain title to 160 acres by paying a small fee, making some improvements, and residing on the “homestead” for five years.  By the 1890s, most fertile land was in private hands, but most of the land west of the 100th meridian, a line running from North Dakota through Texas, had too little rainfall for crops without irrigation and remained in the public domain.  The land was chiefly valuable for grazing, principally beef cattle, run by stockmen in specific ranges, and sheep, herded over great distances.  Aside from scattered homesteads (ultimately expanded to 640 acres for ranches), use of the public domain was unregulated, as the GLO’s mission was to distribute land and not to plan its wise use.  Range wars between large and small cattle operators and between cattle stockmen and sheep herders abounded.  The latter conflicts were particularly intense, because sheep left grass too short for cattle to graze upon, and cattle refused to graze where sheep were pasturing.  Cattlemen referred to sheep as “hoofed locusts,” yet, as Farrington Carpenter, a Colorado stockman who will play a large role in our story, once complained, “We had no way of keeping a sheep man off a cow range.”

Craig's "Stringfellow Acid Pits"

We received word the other day of another addition to the shelf of book-length case studies on environmental law (ours includes Duncan Maysille’s Ducktown Smoke and William Buzbee’s Fighting Westway).  It is Stringfellow Acid Pits: The Toxic and Legal Legacy (University of Michigan Press, 2020) by Brian Craig, a lawyer in Logan, Utah and a full-time adjunct faculty member in the School of Legal Studies at Purdue University Global.

Stringfellow Acid Pits tells the story of one of the most toxic places in the United States, and of an epic legal battle waged to clean up the site and hold those responsible accountable. In 1955, California officials approached rock quarry owner James Stringfellow about using his land in Riverside County, east of Los Angeles, as a hazardous dump site. Officials claimed it was a natural waste disposal site because of the impermeable rocks that underlay the surface. They were gravely mistaken. Over 33 million gallons of industrial chemicals from more than a dozen of the nation’s most prominent companies poured into the site’s unlined ponds. In the 1960s and 1970s, heavy rains forced surges of chemical-laden water into Pyrite Creek and the nearby town of Glen Avon. Children played in the froth, making fake beards with the chemical foam. The liquid waste contaminated the groundwater, threatening the drinking water for hundreds of thousands of California residents. Penny Newman, a special education teacher and mother, led a grassroots army of so-called “hysterical housewives” who demanded answers and fought to clean up the toxic dump.

The ensuing three-decade legal saga involved more than 1,000 lawyers, 4,000 plaintiffs, and nearly 200 defendants, and led to the longest civil trial in California history. The author unveils the environmental and legal history surrounding the Stringfellow Acid Pits through meticulous research based on personal interviews, court records, EPA documents, and other documents. The contamination at the Stringfellow site will linger for hundreds of years. The legal fight has had an equally indelible influence, shaping environmental law, toxic torts, appellate procedure, takings law, and insurance coverage, into the present day.

--Dan Ernst

Weekend Roundup

• With the help of Michael J. Wishnie and his clinic students at Yale Law School, a powerhouse group of legal historians has submitted an amicus brief to the U.S. Supreme Court in Department of Homeland Security v. Thuraissigiam. Signers include Lauren Benton, Barbara Aronstein Black, Paul Brand, Kevin Costello, Christine Desan, Lisa Ford, Eric Freedman, Robert Gordon, Thomas Green, Paul Halliday, Hendrik Hartog, Elizabeth Papp Kamali, Stanley Katz, David Lieberman, Michael Lobban, Bernadette Meyler, Eben Moglen, Hannah Weiss Muller, James Oldham, Wilfred Priest, Jonathan Rose, David J. Seipp, and John Fabian Witt.  

• In the op-ed pages of the Los Angeles Times: Sarah Barringer Gordon (University of Pennsylvania) and Kevin Waite (Durham University) on "California's Forgotten Slave History."

• From the Washington Post's "Made by History" section: Mary Ziegler (Florida State University College of Law) on how it came to be that "both sides in the abortion fight now claim to be for women’s equality"; Monica Kristin Blair (Ph.D. candidate, University of Virginia) on "What the Supreme Court missed about Wednesday’s religious-schools case"; Andrew Urban (Rutgers University) on what the deportation of an Iranian student shows about "the unchecked power of Customs and Border Protection"; Reva Siegel (Yale Law School) and Stacie Taranto (Ramapo College of New Jersey) on "What antiabortion advocates get wrong about the women who secured the right to vote"; and more.

• The Ipse Dixit podcast has posted an episode on antitrust history, featuring Christopher L. Sagers (Cleveland-Marshall School of Law).  

• HNN's interview of Chilton Varner, the president of the Supreme Court Historical Society, is here.

• Martti Koskenniemi presents "What is the History of International Law a History of?" to the  EuroStorie research seminar at the University of Helsinki on January 31.  More.

• Via HNN, here is a report on an American Historical Association panel on the history of presidential misconduct, with Kathryn Olmstead, Kevin M. Kruse, Jeremi Suri, and James M. Banner, Jr., based on the book, Presidential Misconduct: From George Washington to Today, ed. Banner (New Press, 2019). 

• Andrew Delbanco, the author of The War before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, speaks at the FDR Presidential Library at 2:00 p.m. on Sunday, February 9, 2020.

• A response to Guest blogger David S. Schwartz's guest blogposts here in December--by Michael Ramsey on the Originalism Blog here, with a response to the response by David Schwartz here.

• ICYMI:  A new exhibit on Gideon v. Wainwright at the Historical Museum of Bay County (Florida).  Brenda Wineapple in WaPo: why Salmon Chase is not a fit role model for John Roberts when presiding over an impeachment trial.  Histories of pettitfogging from NPR and Kellen Funk.  Sheri Chinen Biesen on film censorship from the 1930s to the 1950s in the OAH’s American Historian.  Drake Law hosts the ABA/Library of Congress traveling exhibit, A 100 Years After The 19th Amendment: Their Legacy Our Future.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

WLH 30:1-2: Woman Suffrage in the US West

Western Legal History 30:1-2 (2019), is a symposium issue on woman suffrage in the American West, with an overview, “How the Woman’s Vote was Won in the West,” by Rebecca  J.  Mead and contributions on Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, and Wyoming.  Also: book reviews.  The issue is available here.

–Dan Ernst

Ablavsky on Administrative Constitutionalism in the Northwest Territory

Gregory Ablavsky, Stanford Law School, has posted Administrative Constitutionalism in the Northwest Territory, which is forthcoming in the University of Pennsylvania Law Review:

Map of Part of the Northwest Territory, 1796 (NYPL)

Both critics and proponents of administrative law’s constitutional pedigree have posited a constitutional “hole” surrounding administration at the time of the Constitution’s drafting. Challenging this account, this Essay examines the Northwest Ordinance and the territorial government it established as a progenitor of what later became known as the administrative state. The statute empowered unelected, federally appointed officials outside the Article III judiciary to exercise legislative and judicial authority over U.S. citizens. This constitutional history underscores that the creation of the United States did not simply repudiate British imperial models in favor of concepts of popular sovereignty and equal footing. Rather, in the territories, the new federal government chose to reconstruct colonial structures of governance over its own citizens, a process that reopened pre-revolutionary debates. This Essay traces two particularly intense constitutional controversies in the Northwest Territory in the 1790s that both had strong prewar echoes: contests over the relationship between civil and military authority, and fights over the territories’ legal status within the new constitutional order. Both debates, I argue, were litigated within the early American territorial analog of the administrative state, but neither achieved any definitive resolution. Rather, the temporary nature of territorial status allowed the new nation to evade the tensions between territorial governance and the Revolution’s purported republican principles, deferring this challenge to future generations.

Research Travel Grants in California Legal History

[We have word from the California Supreme Court Historical Society of its program of Research Travel Grants in California Legal History.]

The California Supreme Court Historical Society (“the Society”) has established a Research Travel Grant, funded by the generosity of California Supreme Court Justice Kathryn Mickle Werdegar (Ret.) and David M. Werdegar, M.D., in honor of Selma Moidel Smith, Editor-in-Chief of California Legal History.

Pursuant to this grant, the Society will defray the expenses of graduate students and law students at accredited U.S. universities and law schools who are researching California legal history for purposes of preparing an article or other paper on that subject and need to travel to access archival materials related thereto. It is expected that most travel will be to or within California, but exceptions will be made in the case of relevant archival materials in other locations. The Society will award individual grants to be used to defray the cost of travel and/or accommodation in amounts typically no more than $700 per project, with a maximum of $1,000 in special cases.  Grants will be awarded on a rolling basis until such time as the fund for the grant is exhausted.

Grant applications must include the following information:

(1) A brief description of the project that necessitates the travel. This description must identify the specific archival collection or collections that the grantee wishes to access;

(2) An itemized estimate of the expenses associated with the research trip, which reflect economical choices of travel and accommodation;

(3) A statement whether the applicant intends to enter the resulting paper in the Society’s Selma Moidel Smith Student Writing Competition in California Legal History;

(4) A copy of the applicant’s curriculum vitae; and

(5) A brief letter of recommendation from a person familiar with the applicant’s scholarly work.

Applicants should send materials by e-mail or conventional mail to:

Professor Reuel Schiller
University of California
Hastings College of the Law
200 McAllister Street
San Francisco, CA 94706
schiller@uchastings.edu

Grant applications will be expeditiously reviewed by a three-person review committee of faculty from differing institutions and must be approved by a unanimous vote.  Applicants are encouraged to enter the Society’s Selma Moidel Smith Student Writing Competition in California Legal History and are also advised that publishable works resulting from this grant will be considered for inclusion in the Society’s annual journal, California Legal History.

Cromwell Article Prize to Maggor

Via the American Society for Legal History, we have the official citation for the Cromwell Article Prize, which was awarded to Noam Maggor (Queen Mary, University of London):

The William Nelson Cromwell Foundation offers an annual prize of $5,000 for the best article in American legal history published by an early career scholar.  Articles published in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize. 2018 recipient: Noam Maggor, “To Coddle and Caress These Great Capitalists: Eastern Money, Frontier Populism, and the Politics of Market-Making in the American West,” American Historical Review 122 (February 2017): 55-84. Committee citation: In our deliberations, committee members were struck by the originality and ambition of Maggor’s argument.  Maggor recovers an overlooked history of state constitution-making in the Gilded Age, connecting late nineteenth-century legal and political development in the American West to the transformation of the United States into a modern industrial nation, the expansion of finance capitalism, and the integration of multiple peripheries into the world economy.  While many scholars have viewed the consolidation of a national market after the Civil War as inevitable, interpreting the growth of American government as a reaction to a largely apolitical process of industrialization, Maggor casts American political development as “fully constitutive of economic change.”  Exploring contingent and contested deliberations over water rights, labor protections, and the power of the state to regulate corporations, Maggor reveals how market integration fanned ongoing struggles over the distribution of material resources, the transparency and legibility of local markets to outside investors, and the geography of the marketplace (whether the Western states would serve the larger economy primarily as a source of raw materials or could become economic centers in their own right). Maggor’s richly textured story describes how financiers from major East Coast cities went west after the Civil War in search of investment opportunities, transforming the economies and landscapes of the frontier.  As money flowed from New York and Boston to Colorado, the Dakotas, Idaho, Montana, and Wyoming, western settlers in the 1870s and 1880s lobbied for statehood, splintering power away from the federal government even as a national market was emerging.  Unlike the top-down institution-building that marked developing economies elsewhere in the world, the drafting of state constitutions in the American West brought together settlers of vastly different social and economic standing, from farmers and miners to lawyers and small businessmen, who would attempt to establish democratic controls over the market.  Rejecting federal-style constitutions that laid out basic principles and left policy details to the legislature, western delegates engaged in robust debate about whether to “prioritize actual settlers over investors, . . . democratic processes over financial imperatives and relative regional autonomy over the prerogatives of a national market.”  Maggor paints a fascinating portrait of the legal consciousness of the delegates, whose dynamic experiences as migrants and settlers led them to privilege pragmatism over formalism and conditions on the ground over abstract ideas.  Delegates proposed innovative water rights regimes, corporate regulatory schemes, and labor protections that departed from established practice back east and worked around anti-regulatory Supreme Court precedent.  And when corporate representatives warned that the proposals would inhibit outside investment, the delegates compromised in ways that varied from state to state.  Maggor labels the resulting constitutional patchwork “a complex new geography” that was “not a clear triumph for any particular interest,” but instead “bore the mark of the divides and disagreements that had surfaced during the writing process.” The committee was very impressed with how Maggor brings together major issues in legal, political, and economic history, connecting a series of scholarly literatures in, as one committee member said, “a startling and excellent way.”  Maggor’s account of multiple state constitutional conventions is deeply researched, and his keen eye for detail captures lives and experiences in ways that show how individual agency can matter even in stories of structural transformation.  With elegant writing and an engaging narrative style, Maggor makes a big and original contribution to multiple fields and will spark important new conversations in the legal history of economic development, regulation, and populist constitutionalism.  We all believe that Maggor’s article is a true achievement that deserves recognition by the Cromwell Foundation.

The members of this year's Cromwell article prize subcommittee were: H. Tomas Gomez-Arostegui (Lewis and Clark) and Erika Pani (Colegio de México).

Congratulations to Professor Maggor!

Simmons on Homestead Law since 1889

Thomas Simmons,  University of South Dakota Law School, has posted Homestead: A (New) Hope, which appears in the South Dakota Law Review 63 (2018): 75-130:

A finely-tuned balancing of commercial enterprise against a family’s interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, "Prequel to Homestead", outlined South Dakota’s homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota’s becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.

Jagodinsky & Mitchell, eds., "Beyond the Borders of the Law"

New from the University Press of Kansas: Beyond the Borders of the Law: Critical Legal Histories of the North American West (Sept. 2018), edited by Katrina Jagodinsky (University of Nebraska) and Pablo Mitchell (Oberlin College). A description from the Press:

In the American imagination “the West” denotes a border—between civilization and wilderness, past and future, native and newcomer—and its lawlessness is legendary. In fact, there was an abundance of law in the West, as in all borderland regions of vying and overlapping claims, jurisdictions, and domains. It is this legal borderland that Beyond the Borders of the Law explores. Combining the concepts and insights of critical legal studies and western/borderlands history, this book demonstrates how profoundly the North American West has been, and continues to be, a site of contradictory, overlapping, and overreaching legal structures and practices steeped in articulations of race, gender, and power. 

The authors in this volume take up topics and time periods that include Native history, the US-Canada and US-Mexico borders, regions from Texas to Alaska and Montana to California, and a chronology that stretches from the mid-nineteenth century to the near-present. From water rights to women’s rights, from immigrant to indigenous histories, from disputes over coal deposits to child custody, their essays chronicle the ways in which marginalized westerners have leveraged and resisted the law to define their own rights and legacies. For the authors, legal borderlands might be the legal texts that define and regulate geopolitical borders, or they might be the ambiguities or contradictions creating liminal zones within the law. In their essays, and in the volume as a whole, the concept of legal borderlands proves a remarkably useful framework for finally bringing a measure of clarity to a region characterized by lawful disorder and contradiction.

A few blurbs:

“This rich and eclectic collection of writings by scholars of Native American, African American, Chicana/o, and Latina/o history as well as border and legal studies represents the death knell to the archetype of the ‘wild west.’ Rather than the North American West being a lawless region, Beyond the Borders of the Law demonstrates the varied origins, uses, and interpretations of the law in there and the ways in which even the most disenfranchised peoples used the legal system to advocate for their rights and personal freedoms. Focusing on themes of race and gender, property and citizenship, and justice and reform, the volume delves deeply and widely into the law’s influence in the borderlands across space, place, and time.” — Miroslava Chávez-Garca

“Western legal history is relatively new, and this creative collection of essays defines the field. Within the broad topic of legal borderlands, ten authors offer their engaging ideas about race and gender, property and citizenship, and justice and reform of the law in the American West. This book is most worthy of being described as ‘cutting edge.’”—John R. Wunder

More information is available here.