Nature's Trust: Reclaiming an Environmental Discourse
By Mary Christina Wood
Excerpt from 2006 Bioneers Conference Keynote Address
(full text, 219k pdf)
IX. A Story of Asset Protection
Fortunately, our democracy still allows us the freedom to rethink and redefine our place in the world according to Nature’s Law. Across the Pacific Northwest, citizens are talking about “Salmon Nation,” which represents a freedom to rethink obligations and property relationships according to the needs of the imperiled salmon. I will close with a story of how a community of ordinary people living up on the Columbia River in Vancouver, Washington declared their citizenship in Salmon Nation by laying claim to a salmon population and emboldening local regulators to use whatever authority they could muster to save the last habitat for these salmon.
The story takes place at a tiny creek called Joseph’s Creek. This creek and its surrounding springs contain one of the last three significant spawning grounds for the Columbia River chum salmon. The salmon were spawning there during the year 1805, when Lewis and Clark traveled by in canoes. They were spawning thousands of years prior, when the Indian people lived at the creek. Some of the arrowheads and sinkers from that time still reveal themselves in the cobbled tidelands after the spring waters recede. But this place is a rarity. Today, all of the rest of the urban shoreline is destroyed – turned into subdivisions, industrial sites, marinas and the like. This little place up at Joseph’s Creek is a last refuge.
Five years ago, a developer acquired the private property on one side of Joseph’s Creek and set out to do what developers do – take out a large number of trees and put in new construction. Normally these developments go in before anyone takes much notice. Priceless habitats that have endured for millennia are snuffed out in the blink of an eye, all with the blessing of numerous local, state, and federal agency trustees that fall in line with their permits like a row of falling dominoes. The developers know how to work the system. And they usually waste no time after getting those permits before they haul out the bulldozers start eradicating Nature. Their giant machinery rips up trees, tears into the soil, and bludgeons riparian areas. After a day of this there is nothing left -- not so much as a reminder of the civilization that existed for time immemorial at these places where little streams come into the Columbia River. It is like going into a bank and tearing into bags of money and throwing it to the winds – only, there on the Columbia, the wealth takes the form of natural assets that have accrued over millennia. This kind of thing happens every day there, and the people just stand by, because most do not think of themselves as citizens of Salmon Nation. They think of themselves as citizens of Vancouver, Washington, and they have faith that there must be nothing worth protecting because their City, after all, has land use laws and wouldn’t give out any permits to destroy things worth protecting. And, too, it’s the developer’s private property, after all.
But in this case, the neighbors and community people stood on the banks of the Columbia and witnessed those salmon spawn in their natal waters -- fins slicing the surface, bodies rolling in the shallows, all working tirelessly with genetic intention to continue their unique strand of life on this Earth. And the people wondered, What more perfect deed could these salmon have to this land? The people began to think of themselves in a new way, as citizens of Salmon Nation, with a higher purpose than they had known in their ordinary days. They began advocating for these chum salmon. They claimed the salmon as their property, shared through the ages with the rest of the citizens of Salmon Nation. They brought their regulators out to Joseph’s Creek to see these salmon spawning. And they invited Columbia River tribal people out there to give blessings and speeches that those regulators heard. Those tribal voices spoke of obligation to the salmon, obligation to future generations. Those words stirred more hearts than any regulatory gibberish under the Endangered Species Act could. Pretty soon school children and retired people, local workers from Frito Lay and Hewlett Packard, historians, fishermen, educators and scientists all came out and spoke of stewardship. The press ran stories on this, because one of the oddest things was that people of all political persuasions and backgrounds were coming together speaking as one voice.
Well, unfortunately for the fish, it became clear that the agencies legally charged with protecting the salmon – the National Marine Fisheries Service and the Washington State Department of Fish and Wildlife – were not going to use their regulatory authority to stop this development. But the community did not give up. (Remember, there is always more than one stadium.) So they turned to their local planning department and told them that there was no other trustee left to save this chum habitat.
It turns out that Vancouver, Washington has a tree ordinance that requires a permit to cut trees. The developer applied for a permit to cut 88 trees on his property, saying he needed to create space for an outdoor badminton court. This seemed a strange sort of thing – after all, how many people play outdoor badminton in Vancouver, Washington (you know it rains a lot there). But it seemed clear that the tree permit would be granted because, after all, most permits to destroy Nature are granted without much thought.
Nevertheless, the community people continued undaunted, speaking in the same voice. They kept bringing out these local regulators and telling them, face to face, that they now held the fate of these salmon in their hands.
When the planning department finally issued a decision on the tree permit application, it surprised everyone. Buried in the 21-page document was language flatly denying the tree permit on the basis that the developer did not need to cut so many trees to create an outdoor badminton court. And for this proposition the planning department cited the International Law of Badminton, which provided the official dimensions for a badminton court – 20 feet by 44 feet, to be precise. That permit denial bought enough time for the city and county to find crucial funding to purchase the property and put it into conservation ownership.
So in the end, it was the International Law of Badminton, not the Endangered Species Act, that saved those salmon. And I would guess this was the first time in modern land use law that the Law of Badminton has saved endangered species habitat. But what we see from this story is that local officials took personal responsibility for protecting Nature’s Trust and creatively used whatever authority they could find to safeguard the great salmon for future generations. There will be salmon in that river next year and 100 years from now because these individuals came to realize that they were, above all else, trustees of Nature’s Trust. They are generational heroes because of it. And virtually no one, no one, will lament the absence of another subdivision along the Columbia River, even one that held the promised attraction of an outdoor badminton court.
 “Salmon Nation” is a trademark of Ecotrust, a non-profit organization dedicated to the protection of salmon. Ecotrust uses the concept of Salmon Nation to “promote a sense of place and stewardship among the citizens of the region.” http://www.ecotrust.org/citizenship; http://www.salmonnation.com/. As Ecotrust describes the concept: “[S]almon Nation's geographical boundaries are simply defined: anywhere Pacific salmon have ever run.” Id.Ecotrust has a program by which citizens may “declare their citizenship” in Salmon Nation. See http://www.ecotrust.org/citizenship/.
 See Lewis and Clark’s Columbia River: “200 Years Later,” The Columbia River: A Photographic Journey. Link.
 Development documents submitted in 2003 reflected plans to create four single-family lots. See Pre-Application Conference Request Form for Subdivisions – Planned Development – Short Plats (Oct. 22, 2003) (on file with author).
 Aldo Leopold said, “We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.” Leopold, supra note 25.
 See id. at 9; see also International Badminton Federation, The Laws of Badminton, section 1.1, http://www.worldbadminton.com/ibf_laws.htm. The decision also cited court dimensions for volleyball (USA Volleyball Association) and croquet (U.S. Croquet Association), as the developer had expressed an intention to use the court area for those recreational activities as well. Tree Permit Removal Decision, supra note 115, at 9. The permit denial tied into the language of the tree ordinance which stated, "When there are feasible and prudent location alternatives on site for proposed building structures or other site improvements, wooded areas and trees are to be preserved." VMC§ 20.96.070(D)(2).
Download the whole speech (219K pdf)
Mary Christina Wood, Philip H. Knight Professor of Law, Morse Center for Law and Politics Resident Scholar (2006-07), Founding Director, Environmental and Natural Resources Law Program, University of Oregon School of Law. This was a keynote address presented at the 2006 Bioneers Conference held in Eugene, Oregon (beam location) on October 20, 2006. See http://www.bioneers.org. Footnotes have been added to provide reference citations. The author greatly appreciates the research assistance of Marianne Dellinger and Chas Horner. The themes of this keynote address are explored in a book in progress, MARY CHRISTINA WOOD, NATURE’S TRUST: A LEGAL PARADIGM FOR PROTECTING LANDS AND NATURAL RESOURCES FOR FUTURE GENERATIONS.
Nature's Trust is made available here with permissions of the author.