I'm not suggesting a legal remedy that California could pursue in court. I am suggesting is that assuming the provision of national forests, BLM lands, and the like serves the general welfare, then it would seem that compensating local communities for the costs of mismanagement would simply be part of the cost of providing the public goods in question. Thus, disaster relief in this instance could serves the general welfare in a manner that, say, compensating landowners for the loss of homes in floodplains due to foreseeable acts of nature would not.
JHA ------- Jonathan H. Adler Assistant Professor of Law Case Western Reserve University School of Law 11075 East Boulevard Cleveland, OH 44106 ph) 216-368-2535 [EMAIL PROTECTED] -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson Sent: Thursday, October 30, 2003 5:24 PM To: [EMAIL PROTECTED] Subject: Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION Jonathan Adler writes: At 03:13 PM 10/30/2003, you wrote: >Insofar as a plausible case could be made that federal (mis)management of >federal lands (national forests, BLM forests, etc.) and federal restrictions >on land-use under various environmental statutes (such as the Endangered >Species Act) contributed to the severity of the fires, could not one then >argue that there is a basis for federal assistance? > >I am not saying that such a demonstration could be made in this case. While >there is clear evidence either or both factors played a role with various >fires in prior years, I do not know of any conclusive evidence in this case. >My only suggestion is that insofar as one could demonstrate some level of >federal culpability in the disaster, would not there also be a justification >for federal compensation? What this reminds me of is Brennan's dissent in DeShaney. I.e., he's unwilling to junk the whole "state action" analysis and instead claims that Wisconsin is "really" responsible for "Poor Joshua." Assuming no sovereign immunity, what result if California sues the United States for "mismanaging" the forests and otherwise restricting California in its efforts to fight forest fires? sandy
