The John Marshall Law Review
Volume 26, Summer 1993, Number 4

FOOTNOTES
on Green Landscaping and Weed Laws

¹ ALDO LEOPOLD, THE SAND COUNTY ALMANAC, WITH OTHER ESSAYS ON CONSERVATION FROM ROUND RIVER 240 (enlarged ed. 1966) [hereinafter ALMANAC].

² J. Madeleine Nash, Gardening Nature's Way: Back-To-Natives Movement is Bringing Ecological Harmony To the American Backyard, TIME, May 17,1993, at 55-57.

³ June Cavarretta, Back To Nature, Prairie Plants Grow on You Wandering Through the Wildflowers, CHI. TRIB., July 26, 1992, Northwest Issue at 3.

⁴ Nash, supra note 2, at 55-57.

⁵ MICHAEL POLLAN, SECOND NATURE, A GARDENER’S EDUCATION 56 (1991). Natural gardeners have cause to be afraid. For years, five natural landscapers have engaged in what has turned out to be a David and Goliath federal court battle with the City of Chicago over its weed law. Schmidling v. City of Chicago, No. 91 C 3506, 1992 WL 14112 (N.D. Ill. Jan. 15, 1992), aff'd, 1993 WL 272408 (7th Cir. July 22, 1993). See infra note 90-102 and accompanying text for a discussion of this case. Chicago actively prosecutes those natural landscapers it selects and seeks heavy fines under its weed ordinance which provides "any person who violates [it] shall be subject to a fine of not less than $50.00 nor more than $150.00. Each day that such violation continues shall be considered a separate offense." CHICAGO, ILL., MUN. CODE § 7-28-120(a) (1992). The fines can be significant. In City of Chicago v. Wojciechowski, 90 MCI 322079 (Cir. Ct. of Cook County, Ill. Crim. Dept., lst Dist.), the City seeks a fine in excess of $125,000.00. See POLLAN, supra, at 56; Pamela Sabastian, Mowers, Growers Now Are Quarreling Over the Back Fence -- New Little 'Wildlife Habitats Pop Up Like Daffodils; Cultivators Are Vexed, WALL ST. J., Apr. 17,1991, § 1, at 1; Laurie Goering, Prairies Beginning to Take Root in City, Suburban Yards, CHI. TRIB., July 29,1991, § 2, at 1; Sue E. Christian, Suburbs Try to Blend Tree-Lined Streets With Prairie Lawns, CHI. TRIB., May 2,1993, § 2, at 1.

[back to text]

⁶ JEREMY RIFKIN, ENTROPY: A NEW WORLD ORDER 26 (1980).

⁷ Id. (quoting John Locke, The Second Treatise of Government, reprinted in JOHN LOCKE, TWO TREATISES OF GOVERNMENT 315 (Laslett ed., 1967) See Immanuel Kant, Duties Toward Animals and Spirits, reprinted in Immanuel Kant, Lectures on Ethics 239 (L. Infield trans., 1963) ("Animals are not self-conscious and are there merely as a means to an end. That end is man.”).

⁸ Natural landscaping includes the more specific forms of the activity like wildflower gardening, butterfly gardening, prairie restoration, and habitat gardening. Each specific variation of natural landscaping isbased on the central theme of gardening in a manner harmonious with Nature. See Nash, supra note 2, at 56; see SARA STEIN, NOAH's GARDEN, RESTORING THE ECOLOGY OF OUR OWN BACK YARDS 52-75 (1992); Mia Amato, Backyard Restoration: How To Garden As if Your Yard Were A Habitat... Which It Is, GARBAGE, May - Apr. 1991 at 50.

The practice of natural landscaping fits within the broader science of “Landscape Ecology.” See ZEV NAVEH AND ARTHUR LIEBERMAN, LANDSCAPE ECOLOGY, THEORY AND APPLICATION 2-4 (1984) (describing the concept of landscape ecology). In practice, landscape ecology combines the horizontal approach of the geographer in examining the spatial interplay of natural phenomena with the vertical approach of ecology in studying the functional interplay of a given site or ecotype. Id. at 3-4. Landscape ecology evolved in Central Europe as a result of the holistic approach adopted by geographers, ecologists, landscape planners, and managers who attempted to bridge the gap between humankind, nature, agriculture and urban systems. Id. at 2. The science of landscape ecology translates to the practice of natural landscaping.

⁹ See generally AMES WESLEY & JIM WILSON, LANDSCAPING WITH WILDFLOWERS: AN ENVIRONMENTAL APPROACH TO GARDENING (1992); KEN DRUSE, THE NATURAL GARDEN 2-11 (1989); JOHN DIEKELMANN AND ROBERT SCHUSTER, NATURAL LANDSCAPING DESIGNING WITH NATIVE PLANT COMMUNITIES (1982); JEFF COX, LANDSCAPING WITH NATURE: USING NATURE’S DESIGN TO PLAN YOUR YARD 1-5 (1991) (an excellent source on the how and why of natural gardening); KAREN ARMS, ENVIRONMENTAL GARDENING (1992); F. HERBERT BORMAN ET AL., REDESIGNING THE AMERICAN LAW, A SEARCH FOR ENVIRONMENTAL HARMONY (1993).

Natural landscaping in America in a modern context dates from the 1960s. For a general discussion of natural landscaping, see IAN L. MCHARG, DESIGN WITH NATURE (1969)(providing a discussion of man's aesthetic relation with the natural world); TAYLOR’S GUIDE TO NATURAL LANDSCAPING (1992)(constituting a good general reference); WARREN G. KENFIELD, THE WILD GARDENER IN THE WILD LANDSCAPE: THE ART OF NATURALISTIC LANDSCAPING (1966)(addressing the art of natural landscaping); LEON S. MINCKLER, WOODLAND ECOLOGY; ENVIRONMENTAL FORESTRY FOR THE SMALL OWNER (1975); R. Patterson, Urban Forests, The Joys of Natural Landscaping, AMERICAN FORESTS, Mar.-Apr. 1992, at 32-35, 70.

In the West, natural landscaping finds its roots in the works of Irish landscape designer William Robinson. See WILLIAM H. ADAMS, NATURE PERFECTED: GARDENS THROUGH HISTORY 191-93 (1991). Robinson advocate “wild gardening" and his book Wild Garden (1870) "encourage[s] the gardener to put some beautiful life in his garden grass, shrubberies and half waste places, leaving it to each gardener's imagination and ability to create his own private wilderness." He advocated meadows covered with massive "drifts" of bluebells and daffodils. Robinson wrote that gardens should conform to "every law of Nature's own arrangement of living things." Id. at 190. English garden designer Gertrude Jekyll, Robinson's friend, shared his vision and influenced gardens around the world with the concept of informal plantings. THEODORE JAMES, SPECIALTY GARDENS 163-64 (1992); see JANE BROWN, EMINENT GARDENERS, SOME PEOPLE OF INFLUENCE AND THEIR GARDENS 1880-1980, at 158-60 (1990)(commenting on the career and work of Jekyll). She worked tirelessly to promote the idea and by the beginning of the 20th Century Jekyll's informal, perennial border garden had replaced ribbon-bedding and the patterned bed in England, Scotland, and Ireland. James, supra, at 163-64. Landowners in Great Britain continue to garden in the natural way advocated by Robinson and Jekyll.

Gardens -- both famous and not-so-famous -- bespeak the Land Ethic as natural landscapes. For example, Sissinghurst Castle, in Kent, England, is surrounded by a natural landscape planted between 1930 and 1961. John Feltwell, On the Wild Side, As Naturalistic Gardens Come More Into Vogue, The Traditional Dividing Line Between Flowers and Weeds Is Becoming Blurred, L.A. Times Mag., Oct. 18, 1987, LA TIMES Mag. At 36A (quoting JOHN FELTWELL, THE NATURALIST’S GARDEN (1987). Now maintained by the National Trust, Sissinghurst is probably the most visited garden in Britain. Id. Another famous English natural garden is Hidcote Manor where plants are allowed their freedom to grow and there is a wild area in the valley called "Wilderness." Id.

Natural landscaping is being practiced today at some of Britains most treasured landmarks. In Surrey, King Henry VIII built Sutton Place. Although the estate originally contained formal Tudor and Elizabethan gardens, in 1980 a new complex of gardens with natural features was planted. As Feltwell describes the gardens:

The newly created 25 acre lake ... attracts mallards, tufted ducks, pochard and little ringed plovers that nest on the banks, while mandarin ducks find a home among the old willows. The meadows are left free to blossom each year with a startling array of wildflowers. Snipe, duck and swans visit the wetter meadows. Old woods have been left untouched and are now managed for wildlife.... The wild garden was designed for special plants, as Robinson preferred, and even mosses are brought to the forefront as a centerpiece in the moss or secret garden, ringing one of the trees - a most original feature, seen hardly anywhere else in the gardens.

Id.

Perhaps England's most famous natural landscaper was Sir Winston Churchill. On the north downs in Kent, Churchill made Chartwell his country home. There he created pools of water and used tons of rock to naturalize the garden. He loved the wildlife attracted by his garden including fox and baggers, and his beloved butterflies. After the war, Churchill released between 1,000 and 1,500 butterflies into his garden each spring. The brick summer house at Chartwell was converted mto a butterfly roost using the wooden seats as benches on which to raise caterpillars. Sir Winston would sit for hours watching the insects hatch and then he would release them into his garden. Rare and endangered species of butterfly, like the black-veined white butterfly, were raised at Chartwell. Id.

[back to text]

¹⁰ LAURA C. MARTIN, THE WILDFLOWER MEADOW BOOK: A GARDENER’S GUIDE 28 (2d ed. 1990).

¹¹ AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1370 (3ded. 1992); see also Webster’s New Universal Unabridged Dictionary 2075 (2d ed. 1979)(defining a weed as "any undesired, uncultivated plant that grows in profusion so as to crowd out a desired crop, disfigure a lawn, etc."). It should be noted that many laws specifically define "weed" within the statutory scheme. See FREDERICK H. MONTGOMERY, WEEDS OF NORTHERN UNITED STATES AND CANADA at xiii (1964).

¹² Most states, as well as the federal government, have noxious weed laws in force, the primary and often sole stated objective of which is to protect crops from harmful plants. See generally ALDEN S. CRAFT, MODERN WEED CONTROL (1975)(describing the effect of pest plants on agriculture); LAWRENCE J. KING, WEEDS OF THE WORLD, BIOLOGY AND CONTROL (1966)(assessing the adverse impact of pest plants on crops).

Noxious weed laws generally list the specific plants by common and scientific name that are illegal or provide a description of the characteristics that compel the classification as illegal. See generally 3 AM. JUR. 2D Agriculture §  51 (1986). For example, the Federal Noxious Weed Act of 1976, 7 U.S.C. § 2802, defines noxious weed as:

[A]ny living stage (including but not limited to, seeds and reproductive parts) of any parasitic or other plant of a kind, or subdivision of a kind, which is of foreign origin, is new to or not widely prevalent in the United States, and can directly or indirectly injure crops, other useful plants, livestock, or poultry or other interests of agriculture, including irrigation, or navigation or the fish and wildlife resources of the United States or the public health.

Id. § 2802(c). For a list of plants that the Department of Agriculture declares to be noxious weeds under this act see 7 C.F.R. § 360.200 (1992). Congress recently enacted an amendment to the Noxious Weed Act to control "undesirable plants" on federal lands. 7 U.S.C. § 2814 (Supp. 1991). Such plants are those "that are classified as undesirable, noxious, harmful, exotic, injurious or poisonous, pursuant to State or Federal law." Id. § 2814(e)(7). The amendment mandates federal and state cooperation to manage these undesirable plants.

State laws similarly outlaw "noxious weeds" primarily to protect agriculture or, in some cases, public health. See, eg., ALA. CODE § 2-25-1(2) (Supp. 1992) (noxious weed is "any living stage ... of a parasitic or other plant of a kind ... which may be a serious agricultural threat in Alabama."); ARIZ. REV. STAT. ANN. § 48-311 (1988)(noxious weeds that are specified by name constitute a nuisance that can be eradicated); COLO. REV. STAT. ANN. § 35-5-110 (West 1984)(agricultural pest control districts may eradicate noxious weeds); DEL. CODE ANN. tit. 3, § 2401 (1985) (noxious weeds are declared to be a public nuisance); FLA. STAT. ANN. §§ 581.031,581.111 (West 1987)(department of agriculture may declare plants a "plant pest" or "noxious weed"); Illinois Noxious Weed Law, 505 ILL. COMP. STAT. 100/2(5) (1992); 8 ILL. ADMIN. CODE, ti. 8, ch. 1, § 220.60 (1992)(listing plants that can be controlled and destroyed under the Illinois Noxious Weed Law); N.Y. AGRIC. & MKTS. LAW § 164 (McKinney 1991)(setting forth the procedure for control and eradication of injurious insects, noxious weeds and plant); see also N.Y. PUBLIC HEALTH LAW § 1320(l) (McKinney 1990) (allowing the health district to destroy ragweed or "other species of weed, plant or growth which is noxious or detrimental to the public health.. .."); Utah Noxious Weed Act, UTAH CODE ANN. § 4-17-7 (1988) (allowing the county weed control board to list annually the local noxious weeds); VA. CODE Am. § 3.1-177.1 (Michie supp. 1992)(controlling "noxious weed[s] harmful to plant and grass growth and to pastures").

Some states have gone beyond noxious weed laws that merely protect agriculture or public health, by enacting statutes to protect the ecology of the state by controlling exotic species. Plants like Purple Loosestrife (L salicaria) and Leefy Spurge (Euphorbia esula), for example, are not generally harmful to agriculture but their effects on natural ecosystems, like wetlands, is devastating. To protect ecosystems from exotic plants, Illinois, for example, the Exotic Weed Act, 525 ILL. COMP. STAT. 10/1 (1992). The Exotic Weed Act makes it a misdemeanor to buy, sell or offer for sale plants declared to be exotic weeds, i.e., "plants not native to North America which, when planted either spread vegetatively or naturalize and degrade natural communities, reduce the value of fish and wildlife habitat, or threaten an Illinois endangered or threatened species." Id; see also FLA. STAT. ANN. § 373.185(2)(b) (West 1993) (allowing municipalities to enact laws prohibiting "invasive exotic species"); MONT. CODE ANN. §§ 7-22-2101(7)(a), 7-22-2115 (1991) ("noxious weeds" means any exotic plant species that may render land unfit for "agriculture, forestry, livestock, wildlife, or other beneficial uses or that may harm native plant communities. . ." and is designated by the state or county); N.H. REV. STAT. ANN. § 487:16 (1992) (outlawing exotic aquatic weeds). The Minnesota Ecologically Harmful Species Act, MINN. STAT. ANN. § 84.968 (West Supp. 1993), takes a broader approach by requiring a state-wide ecologically harmful exotic species management plan to protect against environmental degradation.

Municipal weed laws, unlike state and federal noxious weed laws, are not generally intended to protect agriculture, public health or ecology. Instead, municipal weed laws, particularly those in urban and suburban municipalities, are primarily aesthetic land regulations used to force conformity. Local weed laws are thefocus of this article. It is worth noting that some cities do not refer to there weed laws as "weed laws." Chicago, for example, terms its weed law a “vegetable nuisance" ordinance. See Tr. Oral Argument, Schmidling v. City of Chicago, 92-1410 (7th Cir. Nov. 11, 1992).

[back to text]

¹³ For general biographical information on Aldo Leopold see CURT MEINE, ALDO LEOPOLD: HIS LIFE AND WORK (1988); WALLACE STEGNER, ALDO LEOPOLD:THE MAN AND HIS LEGACY (1967); SUSAN L. FLADER, THINKING LIKE A MOUNTAIN: ALDO LEOPOLD AND THE EVOLUTION OF AN ECOLOGICAL ATTITUDE TOWARD DEER, WOLVES, AND FORESTS (1974) [hereinafter THINKING LIKE A MOUNTAIN]. For two excellent law reviews on Leopold, his work and his legacy, see Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. CoLo. L. REV. 217 (1990); James P. Karp, Aldo Leopold's Land Ethic: Is An Ecological Conscience Evolving in Land Development Law, 19 ENVTL. L. REV. 737 (1989).

There are two organizations dedicated to the study and furtherance of Leopold's work. The Sand County Foundation in Madison, Wisconsin is a private not-for-profit organization that assists land owners, large and small, with ecologically sound ways to improve biologic features of their property. Activities of the foundation include native plant restoration, training for deer hunters and ecological monitoring. For example, the foundation is assisting Wisconsin Power and Light in restoring the Oak Savanna to several thousand acres in southern Wisconsin. The foundation also works with schools. Telephone Interview with Brent Hagland, Sand County Foundation Executive Director (Mar. 3, 1993).

The Aldo Leopold Shack Foundation, in Black Earth, Wisconsin is operated primarily by the Leopold family. It works on smaller scale restoration projects, and through Leopold family members, participates in seminars about the Land Ethic. The family also preserves Leopold’s sand county farm, called the Leopold Memorial Preserve, and the famous “shack" at the farm where he spent the last part of his life and did much of the writing of the ALMANAC.

¹⁴ Gaia is the ancient Greek's name for Mother Earth. The Gaia hypothesis, postulated by English biochemist James Lovelock and American microbiologist Lynn , maintains that the entire Earth, its species, climate, and geography operate like a self-regulating organism. JAMES LOVELOCK, GAIA, A NEW LOOK AT LIFE ON EARTH (1987); see also LEE DURRELL, THE STATE OF THE ARK 23 (1986).

Gaia, the superorganismic system of all life on earth, hypothetically maintains the composition of the air and the temperature of the planet's surface, regulating conditions for the continuance of life.... On Earth the environment has been monitored by life as much as life has been made and influenced by the environment.

Theodore Roszak, Beyond the Reality Principle, SIERRA Mar.-Apr. 1993, at 59, 62 (1993)(quoting Dr. Margulis). Under Gaia, the Earth will adjust its climate to compensate for human activities. But the new order will likely be less favorable to humans than the one we currently enjoy. Lovelock writes:

Although Gaia may be immune to the eccentricities of some wayward species like us ... this does not mean that we as a species are also protected from the consequences of our collective folly. Gaia is no doting mother, no fainting damsel. She is a tough virgin 3.5 billion years old. If a species screws up, she eliminates it with the feeling of the microbrain in an ICBM.

W K. McBIDDEN, THE END OF NATURE 158 (1989).

[back to text]

¹⁵ This phase originated with Roberts Mann in Aldo Leopold: Priest and Prophet, AMERICAN FORESTS, Aug. 1954, at 23, 42-43; see also RODERICK NASH, WILDERNESS AND THE AMERICAN MIND 182-199 (Yale University Press 1967).

¹⁶ Freyfogle, supra note 13, at 217.

¹⁷ A. Dan Tarlock, The Quiet Crisis Revisited, 34 ARIZ. L.REV. 293, 299 (1992).

¹⁸ See supra note 1.

¹⁹ Wallace Stegner writes:

When this forming civilization assembles its Bible, its record of the physical and spiritual pilgrimage of the American People, the account of its stewardship in the Land of Canaan, A Sand County Almanac will belong in it, one of the prophetic books, the utterance of an American Isiah.

Wallace Stegner, Living On Our Planet, 48 WILDERNESS 5-21 (1985). Freyfogle, supra note 13, at 218 (quoting Wallace Stegner, The Legacy of Aldo Leopold, in COMPANION TO A SAND COUNTY ALMANAC 233 (J.Callicott ecl., 1987)).

²⁰ See HENRY DAVID THOREAU, WALDEN AND OTHER WRITINGS BY HENRY DAVID THOREAU (Bantam Classic 1981); RICHARD FLECK, HENRY THOREAU AND JOHN MUIR, AMONG THE INDIANS (1985). Many consider Thoreau to be the first true American environmentalist. In 1845 he settled on the shores of New England's Walden pond and began to pen his environmental masterpiece. In 1984 developers made plans to build condominiums near Walden pond. An effort is underway, lead by environmentalists, politicians, and entertainers to protect the historic ecologic and national landmark from such "improvements." See DON HENLY & DAVE MARSH, HEAVEN UNDER OUR FEET (1991). The title for the book comes from a passage in Walden foreshadowing the Land Ethic and the reverence for Nature that Leopold preached:

I look down into the quiet parlor of fishes, pervaded by a softened light as through a window of ground glass, with its bright sanded floor the same as in summer; there a perennial waveless serenity reigns as in the amber twilight sky, corresponding to the cool and ever temperament of the inhabit ants. Heaven is under our feet as well as over our heads.

Id at 293.

²¹ John Muir left an extensive literary legacy. E.g., JOHN MUIR THE WILDERNESS WORLD OF JOHN MUIR (E. Teale ed., 1954); JOHN MUIR, THE MOUNTAINS OF CALIFORNIA (1911); JOHN MUIR OUR NATIONAL PARKS (1911). For a discussion of his life and work, see his definitive biography in LINNIE M. WOLFE, SON OF THE WILDERNESS: THE LIFE OF JOHN MUIR (1945). Also see FREDERICK TURNER, REDISCOVERING AMERICA: JOHN MUIR IN HIS TIME AND OURS (1985); STEPHEN R. FOX, JOHN MUIR AND HIS LEGACY: THE AMERICAN CONSERVATION WAY: JOHN MUIR AND THE AMERICAN WILDERNESS (1984).

In 1867, Muir wrote of humankind's place in Nature's web, and in so doing sounded the foundation of the Land Ethic:

The world we are told was made for man. A presumption that is totally unsupported by the facts.... Nature's object in making animals and plants might possibly be first of all the happiness of each one of them, not the creation of all for the happiness of one. Why ought man to value himself as more than an infinitely small composing unit of one great unit of creation, and what creature of all that the Lord has taken the pains to make is less essential to the grand completeness of that unit.

Fox, supra, at back cover.

²² Vice President Gore observed that modern civilization's failure to recognize this fundamental inter-connection between humankind and the planet is the core of the current global environmental crisis and biotic armageddon:

The banal face of evil so often manifested by mass technological assaults upon our global environment is surely a consequence of the belief in an underlying separation of intellect from the physical world.... We have misunderstood who we are, how we relate to our place in creation, and why our very existence assigns us a duty of moral alertness to the consequences of what we do. A civilization that believes itself to be separate from the world may pretend not to hear, but there is indeed a sound when a tree falls in the forest.

ALBERT GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT" 258 (1992). Former Colorado Governor Richard D. Lamm, echoed a similar theme:

Our civilization has been running a marathon as if it were a 100 yard dash. We thought the Earth limitless, and even after the astronauts brought back their marvelous pictures of the finite globe we all share, we continued to act as if we could endlessly abuse, the Earth.

... We ethnocentrically thought the Earth belonged to us. But, alas, ecologically, we belong to the Earth. And the Earth is now claiming its due from a myopic species called Man.

Richard D. Lamm, The Heresy Trial of The Reverend Richard Lamm, 15 ENVTL. 755, 760-61 (1985).

²³ The notion of humankind's relationship with Nature is classified into five fundamental paridigms. Colby, Environmental Management in Development; the Evolution Of Paridigms, 3 ECOLOGICAL ECONOMIC 195-207 (1991). First is the frontier economics paradigm which treats Nature as an infinite supply of physical resources to be used by and for humankind. Believers in this paradigm pretend that technology can and will solve all environmental problems, while at the same time allowing us to maintain our present disconnected and abusive relationship with Nature. Id. at 195-98.

Second is Deep Ecology, which is the polar opposite of frontier economics, and draws heavily from Toaism, Buddhism, and Jeffersonian decentralized democracy. Deep Ecology advocates a biocentric and harmonious view of the relationship of humankind and Nature. Its basic tenants include biospecies equality, major reduction in the human population and decentralized pl based in a non-growth, low-tech system of management. Id. at 199-200; see also CHRISTOPHER MANES, GREEN RAGE: RADICAL ENVIRONMENTALISM AND THE UNMAKING OF CIVILIZATION (1990). Groups like Earth First! practice Deep Ecology and believe simply "no compromise is defense of mother Earth.” Earth First! engages in ecotage, the sabotage of the instruments of ecological destruction by, for example, spiking tree trunks marked for cutting to destroy chain saws or disabling heavy equipment by putting sugar in the gas tank. This practice is also called "monkey-wrenching" after the actions of the fictional characters in the environmental classic by EDWARD ABBEY, THE MONKEY WRENCH GANG (1975). Professor Karp notes, “[t]he shallow ecologists of today speak of preventing pollution, minimizing resource depletion, and halting over-population to protect human interests. In contrast, the deep ecologists talk of protecting nature for its own sake, apart from human interests." Karp, supra note 13, at 739. Leopold's Land Ethic is a foundation to Deep Ecology.

Third is the environmental protection paridigm which represents a compromise between frontier economics and deep ecology. It focuses on ways to reduce humankind's harmful activity or to remedy its results. It advocates an "end-of-the-pipe" approach to pollution and the old axiom that the "solution to pollution is dilution." See Colby, supra, at 200-02.

The fourth paridigm is the resource management paradigm which advocates a evolutionary progression that incorporates all types of capital and resources, biophysical, human, infrastructural and monetary, into calculation of national accounts and policies. The concept of reasoned "sustainable growth" has its roots in this paridigm. Id. 202-04. Sustainable growth is the capacity to satisfy current needs without jeopardizing the prospect of future generations. Although theoretically appealing, sustainable development almost never succeeds in practice. Eugene Linden, Sustainable Follies, TIME, May 24,1993, at 57-58.

The fifth humankind/Nature paridigm is eco-development which sets out to restructure the relationship between society and Nature into a "positive sum game" by recognizing human activities that are synergenic with ecosystem processes. Eco-development expands the boundaries of resource management through eco-engineering with activities like man-made wetlands to replace wetlands filled by developers. Colby, supra, at 204-06; see also John A. Humback, Law and a New Land Ethic, 74 MINN. L. REV. 339, 348-51 (1989)(discussing zoning regulation and land ethics).

[back to text]

²⁴ SUSAN L. FLADER & J. BAIRD CALLICOTT, THE RIVER OF MOTHER GOD AND OTHER ESSAYS BY ALDO LEOPOLD 6 (1991) [hereinafter THE RIVER OF MOTHER GOD].

²⁵ Id. at 209.

²⁶ FLADER, THINKING LIKE A MOUNTAIN, supra note 13, at 1; AC, supra note 1, at 130-31. Leopold developed scientific techniques to game management, published the definitive book on the subject and is considered the primary force behind the establishment of scientific game management. See Katherine Simmons Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENVTL. L. 811, 814 (1990).

²⁷ THINKING LIKE A MOUNTAIN, supra note 13, at 2; see also ALMANAC, supra note 1, at 130-31.

²⁸ 16 U.S.C. §§ 1531-1544 (1988). The Endangered Species Act is considered the strongest legislation ever devised for the protection of non-human species. Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGICAL L.Q. 265, 265 (1991). But see Charles E. Little, Has the Land Ethic Failed in America? An Essay on the Legacy of Aldo Leopold, 1986 U. ILL. L. REV. 313, 318 (arguing that America has not yet embraced the Land Ethic). See generally William M. Flevares, Note, Ecosystems, Economics and Ethics; Protecting Biological Diversity At Home and Abroad, 65 S. CAL., L. REV. 2039 (1992).

²⁹ 16 U.S.C. §§ 1361-1407 (1988). Professor Karp also notes that the Clean Water Act, 33 U.S.C. §§ 1251-1387 (1988), and its protection for wetlands also embodies Leopold's Land Ethic. Karp, supra note 13, at 749-W; see also United States v. Riverside Bayview Homes, 474 U.S. 121, 132-33 (1985) (holding that the Army Corp. of Engineers can reasonably "require permits for the discharge of fill material into wetlands").

³⁰ Leopold wrote "[t]o keep every cog and wheel is the first precaution of intelligent tinkering. " AC, supra note 1, at 177; see Doremus, supra note 28, at 269-81; Douglas 0. lander, New Directions For Preservation Law: Creating An Environment Worth Experiencing, 20 ENVTL. L. 49, 63 (1990). Biodiversity is essential to the short-term well-being and the long-term survival of the human species. EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992)[hereinafter DIVERSITY OF LIFE]; EDWARD O. WILSON, BIOPHILIA, THE HUMAN BOND WITH OTHER SPECIES (1984). In Diversity of Life, Dr. Wilson shows that one fifth of all species are in danger of extinction within the next 30 years --- an extinction spasm of dinosaurian proportions that will profoundly degrade the quality of life of the remaining species. See DIVERSITY OF LIFE, supra.

The need to preserve biological diversity is founded on utilitarian, ethical and aesthetic reasons. Doremus, supra note 28, at 269. The ethical basis for species preservation derives substance for the Land Ethic. Id. at 274. Garden design in a holistic natural landscape is a way that humankind can serve this ethical obligation. Id. at 275 (citing H.SANTMIRE, BROTHER EARTH: NATURE, GOD AND ECOLOGY IN TIMES OF CRISIS 152 (1970)).

Mono-turf landscapes destroy diversity. The restoration and maintenance of the native (natural) characteristics of the bioregion is a key to species preservation. See Doremus, supra note 28, at 319 (contending that a "program of representative ecosystem protection would require a method for delineating and comparing ecosystems"); see also Reed F. Noss, A Regional Landscape Approach to Maintaining Diversity, 33 BIOSCIENCE 700, 700-04, (1983); William H. Romme & Dennis H. Knight, Landscape Diversity: The Concept Applied to Yellowstone Park, 32 BIOSCIENCE 664, 664-69 (1982). Natural landscapes are ecological for the simple reason that they fit in and work with Nature. The very definition of natural landscaping means ecologically sound landscaping. See supra note 9 and accompanying text.

[back to text]

³¹ THE RIVER OF MOTHER GOD, supra note 24, at 9. This view of Nature is particularly absent in the West, a fact traced to the Renaissance. Nature was captured in paintings, which became the medium for the appreciation of Nature. Since scenic landscapes were the typical subject of artists, in time, those landscapes became the inculcation of nature. "Vision thus became the predominant sensory modolity for experiencing natural beauty was judged by esthetic conventional Western natural esthetic, andnatural beauty was judged by esthetic criteria originally developed for evaluation of painting." Id.

³² Id. at 10.

³³ Id. at 9.

³⁴ Fox, supra note 21, at 248.

³⁵ Linder, supra note 30, at 54-57.

³⁶ Id.

³⁷ To the National Park Service until recently, only spectacular places like Yellowstone's falls, Yosemite's soring granite peaks and the Grand Canyon's rainbow of colored sandstone were worthy of preservation because they weren’t perceived as beautiful. Consequently many significant biomes, such as prairies deserts and wetlands (swamps they used to be called), are greatly under-represented in the National Park System. Facade management was the rule. Now however, the Park Service follows a let-it-burn policy towards natural fires. As a result, in 1988 Yellowstone burned. See David Jeffery, 175 NAT'L GEOGRAPHIC 255 (1989). Now in the area around Old Faithful stand the charred remains of the once mighty forest. But Nature has, as the Land Ethic teaches, interceded. Wildflowers, in an abundance never before seen in Yellowstone, now blanket the forest floor. The natural succession has an intrinsic beauty that would please Leopold.

Reflecting the official acceptance of the Land Ethic, and the associated rejection of a homocentric approach to preservation, previously under-represented biomes are now considered worthy of preservation. Great Basin National Park in Nevada, on land that 50 years ago would have been considered a waste, is the newest addition to the National Park System. 16 U.S.C. § 410 (mm)(1988). There is a call to establish the Niobrara-Buffalo Prairie National Park in north central Nebraska, 137 Cong. Rec. H2995 (daily ed. Feb. 6, 1991) and the Tall Grass Prairie National Park in Kansas. 137 Cong. Rec. H7829 (daily ed. Oct. 15, 1991). The National Park Service sees a twofold purpose for a Tallgrass Prairie National Park: "[t]o preserve and protect a relatively undisturbed portion of the national prairie environment, and to interpret its role in shaping the American Culture." Linda M. Billings, The Tallgrass Prairie: Vanishing Landscape or National Park (1977), reprinted in ANN GILLAM, VOICES OF THE EARTH, A TREASURY OF THE SIERRA CLUB BULLETIN -- 1893-1977, at 361 (1979). The intransigence of the cattle industry has stymied this effort for decades, but the growing acceptance of the Land Ethic shows itself in the increased support for Tallgrass Prairie National Park.

The United Nations embraces this concept. Under the United Nations Educational Scientific and Cultural Organization's (UNESCO) Man and Biosphere (MAB) program, areas around the world are preserved because of their ecological importance, not just for their visual characteristics. DURRELL, supra note 14, at 78-84.

[back to text]

³⁸ THE RIVER OF THE MOTHER GOD, supra note 24, at 14.

³⁹ Id.

⁴⁰ Id. at 15.

⁴¹ See infra notes 142-148 and accompanying text.

⁴² WILLIAM 0. DOUGLAS, A WILDERNESS BILL OF RIGHTS (1965). Justice Douglas was one of the twentieth centuries most influential spokesmen for the environment and advocates for the preservation of wilderness. See generally William 0. Douglas, Note, The Wilderness Ethic of Justice, 1986 U. ILL. L. REV. 645; WILLIAM 0. DOUGLAS, THE NATURE AND THE VALUE OF DIVERSITY (1964), reprinted in GILLAM, supra note 37, at 538. For a general review of Justice Douglas' philosophy of Nature, see WILLIAM 0. DOUGLAS, OF MEN AND MOUNTAINS (First Cron. ed. 1990).

⁴³ Laurence H. Tribe, Ways Not To Think About Plastic Trees: New Foundations for Environmental Law, 83 Yale L.J. 1315, 1332 (1974).

⁴⁴ ALMANAC, supra note 1, at 219-20.

⁴⁵ 133 CONG. REC. S6933, S6935 (daily ed. May 20, 1987).

⁴⁶ See Id. (noting some of Aldo Leopold's achievements on the 100th anniversary of his birth).

⁴⁷ Id.; Telephone interview with Gordon Stephanson, President of the Aldo Leopold Shack Foundation, and grandson-in-law of Aldo Leopold (Mar. 4, 1993). In 1932, Leopold, the first director of the renowned University of Wisconsin arboretum in Madison, took charge and "restored" the land to its native state. At the dedication of the arboretum, Aldo Leopold sounded the cause for natural landscaping, saying, "This, in a nutshell, is the function of the Arboretum: a reconstructed sample of old Wisconsin to serve as a bench mark, a starting point, in the long and laborious job of building a permanent and mutually beneficial relationship between ciilized men and a civilized landscaper.” UNIVERSITY OF WISCONSIN, OUR FIRST 50 YEARS, THE UNIVERSITY OF WISCONSIN ARBORETUM 1934-1984, at 2-4 (1984)(quoting a dedication speech by Aldo Leopold).

In deciding to use the The University of Wisconsin arboretum to restore a natural ecosystem, Leopold and his collegues boldly broke from the traditional function of an arboretum. Before Leopold, arboreta, like London's famous Kew Gardens, were primarily outdoor plant museums with species arranged for viewing by the public complete with label plates on each tree and in front of each plant. The University of Wisconsin Arboretum became a grand experiment in restoration ecology and serves as a living laboratory for the study of that science - a science that owes its existence to Leopold and is based in large part on the teachings of the Land Ethic. On the Arboretum grounds is the Curtis Prairie, the world's first prairie restoration. The university publishes a journal dedicated to restoration ecology called Restoration and Management Notes.

Restoration of ecosystems, although a new science, enjoys impressive success when properly carried out. See William K. Stevens, Ecosystem Restoration Projects Show Promise, TIMES UNION, Mar. 19, 1991, at A2 (discussing the successful restoration of natural savannah in Greater Chicago). An example of the success of these efforts appears in the Chicago area. Since 1975, the Nature Conservancy and the Cook County Forest Preserve District has actively restored prairie remnants along the Chicago River. STEIN, supra note 8, at 152. On top of the accelerator ring at the Fermi National Accelerator Laboratory in suburban Chicago is a restored prairie that includes a herd of American Bison. See Harold Nelson, Prairie Restoration in the Chicago Area, 5 RESTORATION & MANAGEMENT NOTES 60 (1987).

[back to text]

⁴⁸ People ex rel. Witte v. Big Creek Drainage Dist. No. 2, 51.2 N.E.2d 62, 67 (Ill. App. Ct. 1987) (granting preliminary injunction preventing removal of dam protecting wetland area); see also Just v. Marinette County, 201 N.W.2d 761,768 (Wis. 1972) (noting that a landowner does not have the unfetterred right to alter the natural characteristics of his land, "the changing of wetlands and swamps to the damage of the general public by upsetting the natural environment and the natural relationship is not a reasonable use of that land. . . ."). Other courts have given express recognition to ecological factors in considering land use issues. See, eg., Usdin v. State, 414 A.2d. 280, 289 (N.J. Super. Ct. 1980); A.E. Nettleton Co. v. Diamond, 264 N.E. 2d. 118, 124 (N.Y. 1970); Chokecherry Hills Estates, Inc. v. Deuel County, 294 N.W.2d. 654, 657 (S.D. 1980); State v. Lake Lawrence Public Lands Protection Ass'n, 601 P.2d 494, 500 (Wash. 1979)(en banc), cert denied, 449 U.S. 830 (1980); see also Corrigan v. City of Scottsdale, 720 P.2d 528, 540 (Ariz. Ct. App. 1985), cert denied, 479 U.S. 986 (1986) (finding unconstitutional an ordinance requiring certain areas to remain in natural state because it resulted in a taking without compensation); Saxon v. Division of State Lands, 570 P.2d 1197, 1201 (Or. Ct. App. 1977) (denying petition to fill wetland because the value of the land in its natural state outweighed the value of the wetland as filled).

At common law, the natural state is protected by the Public Trust Doctrine. See Lake Michigan Federation v. United States Army Corps of Engineers, 742 F. Supp. 441, 444 (N.D. Ill. 1990) (discussing the doctrine, its history, and scope). The Doctrine creates a trustee-beneficiary relationship between the state government and its citizens with respect to resources -- beaches, rivers, open lands -- that are, or once were, open to the public domain. Illinois Central R.R. v. Illinois, 146 Ill. 387, 457 (1892), aff'd, 154 U.S. 225 (1894); see generally Richard Ausness, Water Rights, The Public Trust Doctrine, and the Protection of Instream Uses, 1986 U. ILL. L. REV. 407, 411-16 (1986). Under this doctrine, courts have shown great circumspection of any governmental grant of public trust lands where the grant was to benefit a private interest. People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773, 779-80 (ILL. 1976); see Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law; Effective Judicial Intervention, 68 MICH. L. REV. 471, 490 (1970). Originally, this doctrine applied to protect public navigation and fishing rights by holding the grant of submerged lands to rigid judicial scrutiny. More recently courts have found the "dynamic common-law principle flexible enough to meet diverse modern needs ... [and] has evolved from a primarily negative restraint on states' ability to alienate trust lands into a source of positive state duties." District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1083 (D.C. Cir. 1984). Thus, today, the doctrine protects water-related uses such as swimming and recreation, Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 363 (N.J.), cert. denied, 469 U.S. 821 (1984), as well as the aesthetic enjoyment of rivers and lakes. Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709, 719 (Cal.), cert. denied, 464 U.S. 977 (1983); Mary K. McCurdy, Public Trust Protection for Wetlands, 19 ENVTL. L. 683, 688-89 (1989). Wildlife should also be protected under the Public Trust Doctrine. Gary D. Meyers, Variation on a Theme. Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 ENVTL. L. 723 (1989).

⁴⁹ The Minnesota Supreme Court stated:

Times change.... In the 1920's and 1930's, the state encouraged highway construction to facilitate industrial expansion and transportation of farm products to market. However, a consequence of such construction has been the elimination or impairment of natural resources. Whether for highways or for numerous other reasons, including agriculture, it is a well-known fact that marshes have been drained almost indiscriminately over the past 50 years, greatly reducing their numbers. The remaining resources will not be destroyed so indiscriminately because the law has been drastically changed by the Act. Since the legislature has determined that this change is necessary, it is the duty of the courts to support the legislative goal of protecting our environmental resources.

In addition, we think the record adequately establishes that this particular marshland does have unique characteristics that the Act was intended to protect. An ecological unit in itself, it is also part of a larger drainage area several miles long, consisting of marshes, streams, and potholes, extending from the Peterson and Bryson farms north to Freeborn Lake. The marsh involved here contains waterfowl and upland game birds, both of which have greatly decreased in numbers in Minnesota during the past 10 or 15 years. In the same period, marshlands and other natural habitats have been greatly reduced.

To some of our citizens, a swamp or marshland is physically unattractive, an inconvenience to cross by foot and an obstacle to road construction or improvement. However, to an increasing number of our citizens who have become concerned enough to seek legislative relief, a swamp or marsh is a thing of beauty. To one who is willing to risk wet feet to walk through it, a marsh frequently contains a springy soft moss, vegetation of many varieties, and wildlife not normally seen on higher ground. It is quiet and peaceful -- the most ancient of cathedrals - antedating the oldest of manmade structures. More than that, it acts as Nature's sponge, holding heavy moisture to prevent flooding during heavy rainfalls and slowly releasing the moisture and maintaining the water tables during dry cycles. In short, marshes and swamps are something to protect and preserve.

A generation ago, the conservationist Aldo Leopold espoused a "land ethic". In the Environmental Rights Act, our state legislature has given this land ethic the force of law. Our construction of the Act gives effect to this broad remedial purpose.

Freeborn v. Bryson, 243 N.W.2d 316, 321-22 (Minn. 1976). Montana went even further by creating a constitutional right to "a clean and healthful environment." MONT. CONST. art. 11, § 3 (1990).

⁵⁰ Sierra Club v. Morton, 405 U.S. 727, 752 (1972). See generally Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972).

[back to text]

⁵¹ KING, supra note 12, at 243-60; L.J. CROCKETT WILDLY SUCCESSFUL PLANTS: A HANDBOOK OF NORTH AMERICAN WEEDS (1977); GLENN C. KLINGMAN & FLOYD M. ASHTON, WEED SCIENCE, PRINCIPLES & PRACTICES 1 (1975). Even the Bible supports this view. Weeds were not part of God's original creation but rather came from the fall of man from the pristine condition of caretaker and garden enjoyer to farmer and laborer. Now he must work by the sweat of his brow and "[c]ursed be the ground because of you; in toil shall you eat of it all the days of your life; Thorns also and thistles shall it bring forth to you; and you shall eat the plants of the field." Genesis 3:17-18.

Historically, this view is correct. Prior to man, plants were essentially stable components of a bioregion. Weeds, pest plant species, have two manmade causes. First, the introduction of exotic species creates problems because the introduced plants are not subject to the natural biological controls that keep native plants in check. Second, the disturbance of soil created "weeds." KING, supra, at 226. Weeds, often termed pioneer or “band aid" plants, are the first plant to take root in disturbed soil. BOONE COUNTY HEALTH DEPT & BOONE COUNTY CONSERVATION DIST., BOONE COUNTY WEED LAWS & YOU, Pamphlet 712-1987 (1987). To that extent, they operate much as a scab which forms a protective shield on our bodies until something better and more permanent replaces it. Id. For the most part herbaceous pioneer plants are annuals with short life cycles. They are fast growers and produce seeds that often remain dormant, though viable, in soil for even hundreds of years. ROGER P. WODEHOUSE, PHD., HAYFEVER PLANTS, 161 (2d Ed. 1971)(citing H.D. Darrinton, 256

A. M. J. BOTANY 540-70 (1941)); PATRICIA ARMSTRONG, WEEDS 3 (Prairie Sun Consultants, Naperville, Ill., 1989).

Once the soil is disturbed, by cultivation or development, the dormant seeds germinate. Many pioneer species are sensitive to a quick flash of light which causes the germination (hence the farmer's tale about plowing by the light of the moon). Although such pioneer plants are pests to agriculture generally (hence called "weeds"), they serve the important ecological function of holding the soil and preventing erosion, until herbaceous perennials, shrubs and later trees can take root and grow.

⁵² WODEHOUSE, supra note 51, at 161-62.

⁵³ See, e.g., BEVERLY R. DURGAN, UNIV. OF MINNESOTA, MINNESOTA EXTENSION SERVICE, IDENTIFICATION OF PRIMARY NOXIOUS WEEDS OF MINNESOTA (1991).

⁵⁴ DRUSE, supra note 9, at 2-7 (1989); MONTGOMERY, supra note 11, at 8; ALEXANDER MARTIN, WEEDS 6-7 (1972).

⁵⁵ See infra notes 165-83 and accompanying text.

⁵⁶ POLLAN, supra note 5, at 59. In contrast to this view, there are those who recognized and extolled the virtues of wild flowers in the early twentieth century. See, e.g., HOMER HOUSE, WILD FLOWERs (1918) (considered to be a classic botanical work). As one writer notes, "In the vegetable kingdom, all plants are equally plants. It is only man, with his infinite arrogance and his unending desire to categorize things and polarize them, who labels plants as weeds and others as desirables." ROGER GROUNDs, THE NATURAL GARDEN 92 (1976).

⁵⁷ Cox, supra note 9, at 19. Dr. Falk, an ecologist with the Smithsonian Institution's Chesapeake Bay Center for Environmental Studies at Edgewater, Maryland, spent 13 years studying lawns and how humans relate to them. In addition to the genetic predisposition for savanna-type landscapes, Dr. Falk found sociological reasons for our desire for lawns including: (1) "Keep-up-with-Jones" syndrome and peer pressure, (2) advertising from lawn care product companies, and (3) “macho-like” tendencies --”the feeling of power we get from subduing nature.” Maynard Webster, Man and The Lawn - A Long Love Story, N.Y. TIMES, Apr. 12, 1983, at C3.

[back to text]

⁵⁸ John Skow, Can Lawns Be Justified, TIME, June 3, 1991, at 63; COX, supra note 9, at 21.

⁵⁹ Michael Pollan, The Garden's Prospects In America, ORION, Winter 1993, at 27, 29. It is estimated that there are 40 million lawn mowers consuming 200 million gallons of gasoline a year. Sprinkling triples water consumption in many and as much as fifteen percent of all commercial fertilizers, manufactured with massive amounts of natural gas, are not used for food but to make lawns greener. DIEKELMANN & SCHUSTER, supra note 9, at 3.

⁶⁰ GORE, supra note 22, at 126-44. Over half the food eaten by humans is currently derived from wheat, rice and corn despite the existence of some 75,000 species that are edible, many of which are highly nutritious. More than forty percent of modern medicines come from natural sources, primarily flowering plants. Seventy-five percent of the human population living in rural areas of the world survive on traditional herbal medicines. It is estimated that between ten and fifteen percent of flowering plants are threatened by civilization, "a failure that almost certainly includes many species of potential food plants or sources of valuable drugs. And with the disappearance of every species, the world is undoubtedly a poorer place." TERESA FARINO, THE PHOTOGRAPHIC ENCYCLOPEDIA OF WILDFLOWERS 7 (1991).

The critical importance of maintaining plant diversity is demonstrated by the maize species Zea dipleperennis, a wild relative of corn. The species was discovered south of Guadalajara in the 1970s by a Mexican college student. The new species proved resistant to diseases and unique among living forms of Maize in processing perennial growth. If transferred to domestic corn, it could boost productions world-wide by billions of dollars. The discovery was just in time. The small twenty-five acre plot where the wild Maize was found was slated to be burned a mere week after the discovery. DIVERSITY OF LIFE, supra note 30, at 281.

According to the Missouri-based Center for Plant Conservation, the long-term survival of 4,279 of America's 23,000 native plant species is at risk in part because of the rapid growth of the nation's inner suburbs. Janet Marinelli, Gardens for the 21st Century, NATURE CONSERVANCY, May-June 1993, at 34. Natural landscaping in these suburban areas is key to protection from the extinction of many of these plant species. Id.

⁶¹ CHICAGO MUN. ORDINANCE 7-28-120 (1989).

⁶² See Pollan, supra note 59, at 29.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Rachel Carson revealed the horrifying facts about chemical poisons and started a revolution against their indiscriminate use. RACHEL CARSON, SILENT SPRING (1962). The message of SILENT SPRING is clear and mirrors the Land Ethic. Carson showed how all life is interconnected and that harm to any one aspect of the web of life affects the entire web. As a result of her efforts, DDT was banned in the United States in 1972. See Environmental Defense Fund v. EPA, 489 F.2d 1247 (D.C. Cir. 1973) (upholding EPA cancellation of DDT).

⁶⁷ ALMANAC, supra note 1, at 228-29; Karp, supra note 13, at 742. As Professor Karp correctly points out, in a democratic society, the government represents the voice of the citizenry and, therefore, government manifestations of the Land Ethic do fulfill Leopold's thesis. Karp, supra note 13, at 762.

[back to text]

⁶⁸ See generally Kukula Glastris, Letting the Lawn Run Wild: Tall Grasses and Wildflowers Make Creature-Friendly Yards, U.S. NEWS & WORLD REPORT, Sept. 3, 1990, at 81; Paul G. Hayes, Doing What Comes Naturally, MILW. J., Wisc. Section 10-33 (June 28, 1992); RICK BOND, SUCCESSFUL FLOWER GARDENING 25-35 (1990); Lorrie Otto, Must Suburbia Shatter Another Frail Ecosystem, MILW. JNL, May 13,1990, at 7.

⁶⁹ The Wild One's motto is found in the group's bimonthly publication The Outside Story (Wild One's - Natural Landscapers, Ltd.), Jan.-Feb. 1993, at 1.

⁷⁰ See Fox, supra note 21, at 34.

⁷¹ See generally CRAIG TUFTS, THE BACKYARD NATURALIST (1988). The Backyard Wildlife Program is part of a larger national movement. Eleven million Americans have purchased and planted trees and shrubs specifically to provide food and cover for birds, mammals, butterflies, and other kinds of wildlife. Nearly 12,000 individuals and families throughout the country have undertaken NWF habitat projects, developed and implemented a plan, made a record of their efforts and submitted it together with a promise to maintain their yards and other areas in large part to provide the habitat needs of wildlife in their area.

Examples of certified habitats include a homeowners' group of 42 families in Waco, Texas who turned their yards into a single backyard habitat, home to broad-winged hawks, armadillos and twenty-five species of butterfly. Ann Japenga, Some Yards Give Refuge to Wildlife, L.A. TIMES, Dec. 5, 1986, at 6. Employees of the National Starch and Chemical Company in Buffalo, New York, converted four acres adjacent to their plant into a wildlife habitat. Id. The smallest certified habitat is located on a fourth floor balcony in East Boston. Glastris, supra note 68, at 8l. The Governor's mansion in Kansas is certified by the NWF and Mr. Tufts is working with the Clinton Administration to help create a more naturally landscaped White House.

The Urban Wildlife Institute of Columbia, Maryland, has a similar program for certifying backyard wildlife habitats. The purpose of the Urban Wildlife Sanctuary Program is to promote an appreciation and understanding of urban wildlife and its habitat needs, and to give recognition to private and public landowners who dedicate their properties to wildlife uses.

At least eight states, Alabama, Arkansas, Florida, Kansas, Maryland, Oregon, Virginia, and Washington, have programs to encourage and certify homeowner's wildlife habitats. Wisconsin has a program to encourage woodlands. See Whose Woods Are They: Spreading the Roots of Private Forest Stewardship (#FR-072) (Wis. Dept. of Nat. Resources, Madison, Wis. 1992).

⁷² Joe Earle, Outdoor Classrooms Are A Natural For Kids, ATL. CONST., Dec. 16, 1991, at Bl. See generally TUFTS, supra note 71, at 9. - The Bush Administration agreed. Katherine C. Gugulis, Creative Young Minds Grow in the Outdoors, reprinted in U.S. Dept of Agriculture, AGRICULTURE AND THE ENVIRONMENT: THE 1991 YEARBOOK OF AGRICULTURE 266 [hereinafter YEARBOOK OF AGRICULTURE]. Justice Douglas also advocated the need to expose children to Nature as an essential first step in achieving a Land Ethic.

Exposure of the young to nature under the guidance of sensitive and knowledgeable adults is one necessary starting point. This is virtually impossible in modern cities of asphalt and concrete where even playgrounds are paved.... Every school needs a nature trail; and every person -- adult or young -- needs a bit of wilderness, if wonder, reverence and awe are to be cultivated.

GILLIAM, supra note 37, at 539.

The Rappaport yard in suburban Chicago reflects Justice Douglas' advice. A one-quarter acre prairie of native midwest wildflowers, grasses, and legumes was planted three years ago. See Cavarretta, supra note 3, at 3. There, the Rappaport children play and learn "wonder, reverence, and awe" for Nature.

[back to text]

⁷³ City of New Berlin v. Hagar, No. 33582 (Wis. Cir. Ct. Waukesha Cty. Apr. 21, 1976).

⁷⁴ Id.; Patricia K. Armstrong, Life at Prairie Sun: Weed, Water Bans, & Worried Neighbors, MORTON ARBORETUM Q., Summer 1985, at 24.

⁷⁵ Hagar, No. 33582, slip op. at 5.

⁷⁶ Id.

⁷⁷ Id. at 8. See Hayes, supra note 68, at 32 (discussing Lorrie Otto's assistance in legal battle to declare ordinance unconstitutional).

⁷⁸ In Palm Beach County, Florida, the Davises registered a similar victory in 1985. On a three and one half acre parcel in Boyton Beach, the Davises built there home and yard of slash pine, saw palmetto and gallberry. These native trees created a canopy and a self-multching yard of pine needles without one blade of grass. In 1985, the county filed a complaint under the lot clearing ordinance and demanded that the Davises clear all "uncultivated vegetation" and all trees less than three inches in diameter. They appealed to the Environmental Control Hearing Board, and with the aid of the Audubon Society, Florida Native Plant Society and twelve neighbors, the habitat was saved and the county ordinance was rewritten to exclude native vegetation from the lot clearing ordinance. See Wesley Starr, Land Clearing Ordinance Defeated, THE PALMETTO (Florida Native Plant Soc'y, Orlando, Fla.), Spring 1990, at 13.

[back to text]

⁷⁹ Montgomery County Maryland v. Stewart, SW-87-2056 (Montgomery County, Md. Circuit Court, 1987).

⁸⁰ See Mercer Cross, Natural Shocks, Uncut Meadow Brings Fine, Protests, CHI. TRIB., Sept. 18,1988, Home, at 6; Jo-Ann Armao, Maryland Couple Refuses to Be Mowed Down, Couple's Lawn Goes Au Naturel, WASH. POST, June 16, 1988, Metro at DI; Annie P. Gillespie, Home Meadows Confronting Weed Ordinances, WILDFLOWER, Fall/Winter 1990, at 12, 14.

⁸¹ In west central Florida, a similar effort by Dr. Robin Hart has met with success. In August 1992, Dr. Hart, Asst. Director Natural Resources Department for Sarasota County, decided to naturally landscape her yard. Conventional landscaping and lawn remained in the front and along the side yard that adjoins a neighbor, but she did not mow the sparse grass under six large live oaks and a red cedar. She allowed existing wedelia that grew on a steep bank bordering a man-made lake behind the yard to grow dense and bushy. Robin Hart, Ph.D., Natural Landscapes vs. Mowing Ordinances, THE PALMETTO, Spring 1993, at 8-9.

Beautybush, Virginia Creeper, two laurel cherry seedlings and a shrubby Desmodium species sprouted. Nursery-grown redbay, wax myrtles, wild coffee, black haw, and a needle palm were planted. Moorhens seemed to appreciate the vegetative cover. Otters stopped at her yard on a few occasions. Black racers, scarlet king snakes, and an opossum were seen in her brush pile. The trees were occupied by blue jays, woodpeckers, flickers, and a variety of other birds. Id.

After several months, a Notice of Violation arrived via certified mail from the County Solid Waste Department. Her neighbor had filed a complaint. If her yard wasn't mowed in 20 days, the County would mow it. The ordinance provided:

The uncontrolled growth of annual herbaceous vegetation commonly known as weeds, upon a portion of any lot, tract, or parcel of land which has been previously cleared and which has been previously cleared and which is within 200 feet of the boundary line of any improved property within the unincorporated area ... to the extent that such portion of the lot, tract of parcel of land is nor may reasonably become infested or inhabited by rats or vermin or may furnish a breeding place for mosquitoes or cause disease, create a fire hazard, or adversely affect and impair the economic welfare of the adjacent property is hereby prohibited.

Id.

Dr. Hart's plants were all perennials. She called the code enforcement officer who had to be told the difference between perennials and annuals. His supervisor took plants from her yard to the County Extension Service, who verified the absence of annuals. The County Attorney was consulted and agreed that she was not in violation of the ordinance. She is now working with Florida Native Plant Society to change weed laws in the County. Id.

Native plant societies, like Florida's, are an essential force in the establishment of natural landscapes. In the eastern United States alone, there are over 30 such organizations including native plant societies in Alabama, Illinois, Kentucky, Texas and West Virginia. See DONALD STOKES & LILLIAN STOKES, THE WILDFLOWER BOOK, EAST OF THE ROCKIES 95 (1992).

Stephan Kenney and his wife were not so fortunate. In one of the few cases where a natural landscaper has lost his effort in court to retain his natural landscape, Kenney was found guilty of violating a weed law for planting a wildflower meadow in "Thoreau's tradition" and fined $30,000. POLLAN, supra note 5, at 56; see also Armstrong, supra note 74, at 24; Not Everyone is Wild About Wildflowers, CHRISTIAN SCI. MNTR., July 1, 1985, at 29-30. Fortunately, a New York appeals court reduced the fine to $500. He paid the fine but was forced to move elsewhere after he was repeatedly threatened by neighbors. They vandalized his yard and shot and killed birds in his meadow. He now lives in Rensselaerville, New York, where the community lets him grow his natural landscape. Telephone Interview with Stephan Kenney (Nov. 2, 1992).

[back to text]

⁸² No. 89-10401, slip op. (Little Rock Mun. Ct. 1989); Telephone Interview with Lyndae Allison (Apr. 15, 1993).

⁸³ Little Rock Mun. Code, Art. § 20-2 (1988).

⁸⁴ Cory Bradburn, Judge Permits Backyard Forest, Overgrown Yard Upsets Neighbors, ARK. GAZETTE, Nov. 14,1989, at Bl.

⁸⁵ Anne Raver, Ladybird's Latest Love, CHI. TRIB., May 16,1993, Home, at 14; Amato, supra note 8, at 50.

⁸⁶ See Margaret Roach, The Weed's Wild Bunch, WASH. POST, Nov. 19, at 95. The National Wildflower Research Center publishes a quarterly journal, Wildflower, that includes articles dealing with gardening, private landscaping, plant rescue, revegetation and similar subjects. The NWRC also publishes a host of books on wildlife gardening, low-maintenance landscaping and collecting wildflower seeds. E.g., NATIONAL WILDFLOWER RESEARCH CENTER, THE WILDFLOWER HANDBOOK (2d ed. 1992).

⁸⁷ William B. Logan, To Mow or Not To Mow, HOUSE AND GARDEN, May 1992, at 46 - 48.

⁸⁸ Telephone Interviews with Cathy Smallwood (Mar. 2, 1993).

⁸⁹ City of St. John's, Maintenance Housing By-Law § 5.1(b) (Feb. 28, 1990).

[back to text]

⁹⁰ Am. Complaint 90, Schmidling v. Chicago, No. 91-3506 (N.D. Ill. 1991); Nash, supra note 2, at 56; Kevin Smith, Lawsuit May Settle Question; Natural Gas or Weeds, CHI. N'WESTSIDE PR., June 19, 1991, at 1, 16; Alf Siewers, Gardeners Sue Over City Ban On Wild Things, CHI. SUN-TIMES, June 7, 1991, at 3, 47; Alf Siewers, Move to Clip Chicago ’s Weed Law Gains An Ally, CHI. SUN-TIMES Dec. 9, 1991, at 5, 42.

⁹¹ Am. Complaint, Schmidling, No. 92-1410.

⁹² Id.

⁹³ Id.

⁹⁴ Id.; see also STEIN, supra note 8, at l56. Larry Clark is a member of the Board of Directors of the North Park Village Nature Association, a local organization dedicated to preserving and managing the North Park Village nature preserve located on the North Side and owned by the City. Clark is a member of the Wild Ones. Like Schmidling, Clark received an NWF Certificate of Achievement. And like Schmidling, Chicago repeatedly prosecuted Clark for violating the city's weed law.

⁹⁵ The Bob-O-Link Meadow in Jackson Park is a spectacular example of local government efforts to re-connect humankind and Nature through natural landscaping. Jackson Park, on Chicago's south side, consisted of marshes and natural areas until it was "developed" for the 1892 Columbian Exposition. Thomas Creech, CHICAGO PARK DISTRICT DEVELOP OF A NATURALISTIC HABITAT AREA EAST OF JACKSON PARK LAGOON, Mar. 5, 1981. The marshes were drained and the meadows plowed under. After VMI, the area became a Nike missile launch site. After the Nike base was dismantled, there was a local move to reestablish the area to its natural state. Planning meetings were held in the late 1970s. Carol Braun, then the state representative for the district, was a primary advocate.

In 1981, the Park District's Senior Landscape Designer, Tom Creech, issued his report outlining how the restoration was to take place. By 1992, the Bob-0-Link meadow was a diverse habitat for native plants, birds and insects. Other parks where native prairies exist or are planned include Challenger Park near Wrigley Field, along the Chicago Transit Authority's Elevated tracks, and elsewhere throughout the city. The park district is currently in the process of transplanting a wet prairie to Marquette Park from a site a mile away that is being developed. K.O. Dawes, Prairie Being Moved to Greener Pastures, CHI. SUN-TIMES, Feb. 26, 1993, at 4.

Detroit has an even bolder approach to natural landscaping. To reduce crime, litter and the associated costs, there is a proposal to fence off large tracts of abandoned property and plant trees and plants, and allow Nature to reclaim the areas. By "mothballing" the land, the city can cut costs and the property will be available for development in the future. Nancy Costello, Detroit Aide Wants to "Pasture-ize" Motor City, CHI. SUN-TIMES, May 6, 1993, at 34.

⁹⁶ Rich Hyerczyk's garden is part of the Cook County Forest Preserve Palos-Sag Restoration Project -- an attempt by the County to return 14,000 acres of forest preserve to its natural state. Hyerczyk is the regional ecologist for the project. Am. Compl., Schmidling, No. 92-1410.

⁹⁷ Id. On January 15, 1992, the District Court dismissed the Chicago 5's complaint for lack of standing and alternatively on abstention grounds. The Court did not reach the merits. Schmidling v. City of Chicago, 1992 WL 14112 (N.D. Ill., Jan. 15,1992). The Seventh Circuit Court of Appeals affirmed. 1 F.3d 494 (7th Cir. 1993).

⁹⁸ See infra note 129-92 and accompanying text.

⁹⁹ Letter to Marie Wojciechowski, May 7, 1991, on file in Chicago v. Wojciechowski, 90 MCI 322079. The letter, written by City Architect Jeffrey M. Goliber, includes a list of the species planted by the City in the prairie, including for example 105 pounds of prairie grass seed and 70 pounds of forb and legume seeds.

¹⁰⁰ Am. Compl., Schmidling, No. 92-1410.

¹⁰¹ Id.; see STEIN, supra note 8, at 152 (discussing the forest preserve's restoration of the prairie).

¹⁰² Am. Compl., Schmidling, No. 92-1410.

[back to text]

¹⁰³ The author has published two articles related to the effects of weed laws on natural landscaping. Bret Rappaport, Local Weed Laws: Why They Exist and Where They Are Headed, WILDFLOWER, Fall/Winter 1992, at 92 [hereinafter Local Weed Laws]; Bret Rappaport, Weed Laws. A Historical Review and Recommendations, 12 NAT. AREAS J. 216 (1992). He has received requests for these articles from people and government officials in Australia, West Germany, France, Argentina, and South Africa, as well as Canada and the United States. The Canadian Wildflower Society in Pickering, Ontario is working to change local weed laws in Canada. Similarly, the National Wildlife Federation, Sierra Club and National Wildflower Research Center in Texas have taken up the cause in the United States.

¹⁰⁴ ANNE H. EHRLICH & PAUL R. EHRLICH, EARTH 247 (1987).

¹⁰⁵ 23 U.S.C. § 319(b)(1992). The provisions are mandatory.

Illinois, Minnesota, Wisconsin, and Iowa are taking the most proactive response to the legislation. Telephone Interview with Bonnie Harper Lore, U.S. Dept. of Trans. (Jan. 17, 1993). The wildflower provision was sponsored by Texas Senator Lloyd Benson and strongly supported by Ladybird Johnson, founder of the National Wildflower Research Center and a long time supporter of the environment and native plants.

This provision supplements the Federal Highway Administration's Operation Wildflower Program begun in 1973. Under that program, a state federation of garden clubs or a member club of a federation, may pay for or furnish wildflower seeds, or bulbs to a state highway agency for planting on highway rights of-way. The state agency has the responsibility for determining where to plant flowers. Federal funds are then made available for participation in the cost of planting and maintenance. Ohio and Michigan are persistent and successful participants in Operation Wildflower.

In addition to these programs, wildflowers and native plantings are customarily undertaken as part of erosion control measures and under continuing efforts by states to beautify their highways under "Adopt-a-Highway" and "Adopt-a-Spot" programs. See U.S. DEPT. TRANS., WILDFLOWERS AND THE FEDERAL AID HIGHWAY PROGRAM 9 (1992) (pub. FHWA-PD-92-027) (discussing a number of federal funding programs designed to encourage and mandate the planting of native wildflowers along highway rights-of-way).

¹⁰⁶ William K. Stevens, Restoring an Ancient Landscape.- An Innovative Plan for the Midwest, N.Y. TIMES, Mar. 2,1993, at B5. Interior Secretary Bruce Babbit is a firm believer in the Land Ethic and is taking steps to bring his department's actions into step with the teachings of Leopold, one of Babbit's favorite authors. Gregg Easterbrook, Bruce Babbit's Interior Motives, NEWSWEEK, Mar. 29,1993, at 25.

¹⁰⁷ Henry M. Cathey, Wildlife:- Entertainers and Pest-Controllers For Farm and Garden, reprinted in, YEARBOOK OF AGRICULTURE supra note 72, at 297-301.

¹⁰⁸ Id. at 297.

¹⁰⁹ Id. at 301.

¹¹⁰ Natural Landscaping Around Parks, OTTAWA CITIZEN, Jan.21,1993, at B2.

¹¹¹ COLIN TUDGE, GLOBAL ECOLOGY 161 (1991). See generally GENE LOGSDON, WILDLIFE IN YOUR GARDEN (1983). River Hills, Wisconsin, an affluent suburb, for example, has begun to embrace natural prairie landscaping by allowing residents to plant prairie species in village cul-de-sacs. Most village residents also naturally landscape their yards. The Indian Hill School has its entire front yard planted with prairie species as part of a community project.

[back to text]

¹¹² NEIL DIBOLL, SOCIAL CHANGE & THE PRAIRIE MOVEMENT: ROOTS OF CULTURE 1 (1991) (available from the Prairie Nursery, Westfield, Wis.).

¹¹³ Hayes, supra note 68, at 16.

¹¹⁴ See generally CONNIE ELLEFSON, THOMAS STEPHANS & DOUGLAS WELSH, XERISCAPE GARDENING: WATER CONSERVATION FOR THE AMERICAN LANDSCAPE (1992). Xeriscape is a term derived from the greekword xeros meaning dry and the word landscape. Xeriscaping, which began in Denver in 1985 in response to to a water shortage, has now taken hold throughout the American West. RUTH S. ERNST, THE NATURALIST's GARDEN 232-33 (1987).

From California to Canada, natural landscaping to conserve water is not only becoming acceptable but is being mandated. In parts of California 33% of municipal water is used to irrigate lawns and in some Canadian office complexes, water usage increases 300% in the summer. Colin Isaacs, Getting Rid of Bright Green Lawn, FINANCIAL POST, May 8,1992, § 1, at 11. Many homes and businesses in the United States south and west are switching to xeriscaping. Id. In Novato, California the city water authority provides a grant for landowners who rip out their lawns and replace them with xeriscaping. Id.

The State of Florida, plagued by constant water shortages has mandated that local governments enact local xeriscaping ordinances. FLA.STAT. ANN. ch. 373.185 (Supp. 1992). Under the Florida statute, local government ordinances must provide incentives for landowners to maintain landscape designs that (1) reduce water usage, (2) prohibit invasive exotic plants, and (3) limit the maximum percentage of turf on the land. Id. In doing so, Florida has become the first state to enact a natural landscaping statute in effect, although not titled as such, because natural landscapes satisfy the requirements of the Florida law.

Typical suburban lawns are water wasters. In Western cities as much as sixty percent and as much as thirty percent of municipal water in Eastern cities is used for lawns. Malcolm Jones, Jr., The New Turf Wars: A Plague of Critics Bushwacks the Venerable American Lawn, NEWSWEEK, June 21,1993, at 62-63. Kentucky Bluegrass (Poa pratensis), the most common type of lawn, is not from Kentucky at all but rather is an exotic species from northern Europe where the climate is cool, damp and foggy. ARMSTRONG, supra note 51, at 21. As such, Kentucky Bluegrass is a cold season grass which does most of its growing in the United States during the early spring and early fall when temperatures are relatively cool and rain is relatively frequent. Id.; see also JAMES B. BEARD, TURF GRASS: SCIENCE AND CULTURE 55 (1973) (discussing characteristics of Kentucky Bluegrass). To keep it growing in the hot summer, requires extraordinary amounts of water. ARMSTRONG, supra note 51, at 21. Watering America's golf courses alone requires expenditures of $400,000,000 and the use of half a trillion gallons of water. Id. In addition to being a water waster, Blue grass is responsible for the death of oaks in many suburban areas. Id. at 22. Bluegrass sod competes with thin and fragile feeder roots for surface moisture and nutrients. Id. (citing George Ware, The Destructible Oak, 6 MORTON ARBOQ. 42, 4247 (1970)). But see ROBERT SCHERY, A PERFECT LAWN: THE EASY WAY 10-19 (1973) (advocating the benefits of exotic turf and the attendant use of fertilizer and herbicides). Mr. Schery was director of the Lawn Institute and worked as a botanist for Monsanto Chemical Company and O.M. Scott & Sons Company.

Heat and drought resistant species of native Buffalo grass (Buchloe dactyloides) now replace traditional Kentucky Bluegrass lawns in subdivisions and neighborhoods in and around southern California, Denver, Tuscon, and other major cities. See Duane Carlson, Denver Turns On to Xeriscaping, Turns Off on Thirsty Grasses, WALL ST. J., June 18,1985, at 33; Ken Ball & Gary 0. Robinette, The Water-Saving Garden Landscape, COUNTRY J., Sept.-Oct. 1990, at 62-68. Unlike Kentucky Bluegrass, Buffalo grass is a naturally short grass that evolved on the western plains where rainfall is limited. BEARD, supra, at 158-159; ARMSTRONG, supra note 51, at 22-23. Xeriscaping also creates an inviting natural landscape and, most important, it does all this while serving the Land Ethic. See Rod McCullom, Desert Islands, Xeriscapers Say Method Saves Water --- Wallet’s Greenery, L.A., July 23, 1988, at 5.

[back to text]

¹¹⁵ Maintenance costs can be cut by almost 98% of the the cost of an exotic lawn. Ted Williams, The Joe-Pye-Weed is Always Taller in the Other Person's Yard, AUDOBON, July 1981, at 108. For example, General Electric Medical Systems in Waukesha, Wisconsin, tends 23 acres of lawn at a cost of $1,500 per acre per year. Id. But they have set aside 80 acres for diverse prairie, which costs the company no more than $25 per acre per year. Id. See infra note 182 and accompanying text for discussion on harmful affects of lawn fertilizers, pesticides, and herbicides.

¹¹⁶ The specific economic advantages to natural landscaping include:

¹¹⁷ Although the trend is clearly towards more state transportation agencies practicing natural landscaping, there are those who argue against it. In North Dakota, for example, the DOT has resisted efforts to increase the "no-mow" areas because of a long-standing relationship with landowners. Puerg Vongs, The Scenic Route, Roadsides Go Natural, AUDOBON, May-June 1993, at 29. According to the North Dakota Stockmen's Association, landowners have the right to mow and collect hay for feed as compensation for land lost when roadways were built. Id. The North Dakota House Agriculture Committee has voted to recommend a ban on further no mow areas giving the stockmen a preliminary victory. Id.

North Dakota's view is in the minority and it is short-sighted.

In Wisconsin, for example, a lengthy and explicit natural roadsides policy is part of the official management policy of the Wisconsin Department of Transportation. See Wis. DEPT. OF TRANS., MAINTENANCE MANUAL POLICY chs. 70.0, 74.0 (Jan. 1, 1991) (delineating where, when and how active management maybe undertaken, including mowing, woody plant control and herbicide application). The policy encourages management for stands of native woody and herbaceous plants, and limits herbicide use to spot treatment of noxious weeds and selected woody plants. Id. Under this policy, the WDOT has spent $500,000 to plant a 42-mile stretch of U.S. 51 with native grasses. See WIS. DEPT. OF TRANS., CONSERVING WISCONSIN PRAIRIE (Madison, Wis. 1991). By 1991, eighteen sites around the state had been seeded with prairie species. Landon McBridge, Roadside Prairie, The DOT (Yes, the DOT) Helps to Restore Nature, MADISON ISTHMUS, Sept. 27, 1991, at 25.

Other Midwestern state departments of transportation follow similar programs and policies. The Illinois Department of Transportation initiated a limited mowing policy in 1970 and incorporated use of prairie forbs and grasses into certain seeding specifications for planting on all appropriate new or regraded rights-of-way. Victoria Nuzzo, Dane County’s Experience: What Happened? Why?, MANAGING WISCONSIN's ROADSIDES, March 1991, at 4. Minnesota state law specifies that mowing more than eight feet from the pavement must be delayed until after August 1^st to encourage development of wildlife habitat. Id. Texas continues to encourage planting and maintaining wildflowers along highways. Id. The Massachusetts Turnpike has wildflowers and native plants along it rights-of-way. Matthew Brelis, The Seeds of Change Allowed to Flourish, Mass. Pike's Uncut Grass Border Sprout Ruled Claim, BOSTON GLOBE, June 16, 1991, Metro, at 29. The 1989 policy is viewed as "wonderful" by Turnpike Member Ann Hersfang. Id. The native landscape creates a "palette of color and a lot of visual interest." Id. The mowing budget has dropped 13.2% since the program began. Id. North Carolina has a similar program. Vongs, supra note 117, at 28. In these states, incorporation of specific management methods into state laws or regulations ensures adherence to these policies, regardless of personnel opinions or staff changes.

Other right-of-way management programs have been conducted by a variety of agencies. Development of pheasant and other gamebird habitat is promoted along rural and state highways in many Midwestern states, often as a joint endeavor of several state agencies. In Illinois, nearly 6,000 acres of rural rights-of-way have been planted and managed for gamebird habitat under the Roadsides for Wildlife Program, coordinated by the Illinois Department of Conservation. Nuzzo, supra at 4. This program encourages use of native grass and forb species and limits mowing and herbicide application. Id. While the resulting vegetation does not resemble a prairie, it does provide wildlife habitat and an interesting visual appearance in an agricultural area. Id.

[back to text]

¹¹⁸ MINNESOTA DEPT. OF TRANSP., PLANTING PRAIRIE WILDFLOWERS. The MDOT cites many foreseeable benefits to its program:

Id. at 1.

¹¹⁹ Nonpoint Source Contaminants (NPSCS) are water pollutants not attributable to a single source, like a factory. NPSC's represent a serious threat to human health and safety, the health and safety of domestic livestock, wildlife, fisheries and ecosystems. Steven Apfelbaum, A Focus On Nonpoint Contaminant Instream Water Quality Standards and Contaminant Impacts On Aquatic and Terrestrial System And Methods for Reducing These Problems, Testimony Before the Illinois Pollution Control Board 1 (Dec. 14, 1992) (available from author at Applied Ecological Services, Inc., Brodhead, Wis.) [hereinafter Testimony of Steven Apfelbaum]. In addition to the direct health related costs, NPSC's cost business and industry through damage to aquatic and terrestrial systems, drainageway maintenance costs and lake sediment management costs. Ecologically, NPSC's reduce system productivity, cause irreparable damage to wetlands and reduce biological diversity. Id. at 5-6.

For two reasons, a primary source of NPSC's is urban and suburban rain runoff. First, the alteration of the landscape due to non-permeable surfaces like pavement exotic lawns coupled with the fact that during development, soil is graded and near impervious conditions can be created. Id. at 2. The rate of runoff from these surfaces is greatly increased over the natural runoff for the bioregion.

Second, many homeowners apply fertilizers, pesticides and herbicides to maintain and beautify their exotic turf landscapes. Id. at 2, 4. This is usually followed by heavy watering because exotic cold season grasses, like Kentucky Bluegrass, require additional water during the summer to remain green. The application of these chemical lawn care products to the near impervious turf landscape, leads to high levels of NPSC from urban areas, in amounts that often exceed NPSC runoff from rural areas. Id.

Natural landscaping is a proven means to reduce NPSC. Unlike the compacted soils mono-turf landscape which increase runoff,natural landscapes (with a variety of plants within a varied topography) simply slow the runoff and permit the water to seep into the ground. Testimony of Steven Apfelbaum, supra, at 36.

The effort to reduce NPSC's has reached suburbia. For example, in the wealthy Chicago suburb of Highland Park, scientists, ecologists and developers are working together to build Hybernia, a residential development which includes a 27 acre nature preserve. Id. at 33. Although the emphasis is on natural landscaping (residents are given a book called "Living with Nature"), for those homeowners who choose to have exotic lawns, their use of lawn care chemicals is restricted in amount, location and date of application, to NPSC'S. Id.

[back to text]

¹²⁰ DIBOLL, supra note 112, at 1.

¹²¹ Letter from Neil Diboll to Bret Rappaport (Feb. 16, 1993) (on file with author). Leopold said it this way:

Our bigger and better society is now like a hypochondriac, so obsessed with its own economic health as to have lost the capacity to remain healthy. The whole world is so greedy for more bathtubs that it has lost the stability necessary to build them, or even turn off the tap. Nothing could be more salutary as this stage than a little healthy contempt for a plethora of material blessings.

ALMANAC, supra note 1, at xi. Vice President Gore sounds a similar cord in calling for an end to the ecologic armageddon and in its place a Global Environmental Marshall Plan. GORE, supra note 22, at ch. 13.

¹²² Rappaport, Local Weed Laws, supra note 103, at 10. The City of Champaign, Illinois, is considering a permission-type ordinance. CHAMPAIGN MUN. CODE ch. 35, art. II et seq. Under the proposed ordinance, natural landscapers can submit a "Managed Landscape Plan" which sets forth what species are beuig planted and what maintenance technique will be employed. Id. There must also be a three foot set back from all property lines in which the vegetation cannot exceed eight inches. Id.

[back to text]

¹²³ Rappaport, Local Weed Laws, supra note 103, at 10.

¹²⁴ Id.

¹²⁵ Id.

¹²⁶ Telephone Interview with Cal Doughty, Long Grove Village Manager (Oct. 2.,1992).

¹²⁷ Id.

¹²⁸ See generally CITY OF FORT COLLINS, NAT. RESOURCES DIV., CITY OF FORT COLLINS NATURAL AREAS POLICY PLAN (Aug. 1992). The plan should serve as a model for all municipalities. Its statement of purpose echoes the land ethic:

Anyone who has walked the trails along the banks of the Poudre River, watched a wedge of Canada geese fly across a fall sunset, seen a great blue heron stalk fish along the edge of a pond, or admired the grasses and wildflowers of the prairie next to the foothills knows something of the richness of the natural areas that occur in Fort Collins. They know, too, that the natural areas that remain intermingled within the developed landscape enhance the quality of urban life. Wetlands, waterways, riparian forests, and other natural areas provide scenic beauty, recreation, water quality protection, opportunities for interpretation and education, and a greater sense of spaciousness within our urban setting. Within Fort Collins, natural areas help meet the complex needs of people. In combination with our homes, schools, and businesses, natural areas provide important habitats for people.

Although most residents of Fort Collins probably understand some of the values of local natural areas, many may not appreciate the surprising richness of the natural resources of our community. Wetlands, riparian forests, and native prairies are considered threatened ecosystems by many biologists; prime examples occur within the Fort Collins Urban Growth Area. Bald eagles winter along the Poudre River, near local reservoirs, and within the large grasslands along Fossil Creek. Great horned owls nest along the river, on the Colorado State University campus, at Grandview Cemetery, and downtown. White-tailed and mule deer frequent stream drainages. A tiny rare plant, Bell's twinpod, occurs on the foothills ridge west of town. Two rare butterflies find living space along short stretches of the Poudre River and Fossil Creek. Within the urban setting of Fort Collins, natural areas provide important habitats for the conservation of plants and animals and their associated ecosystems. The document addresses two key needs: Habitat for Conservation and Habitat for People. The two often conflict. But, both needs can be met, with forethought and planning. The intent of this plan is to set a direction for the future management of natural areas in Fort Collins that will meet the needs of the citizens of the City as well as the needs of the many other creatures with whom we share the land.

Id. at 1-1.

[back to text]

¹²⁹ See generally Spence v. Washington, 418 U.S. 405 (1974) (displaying flag upside down was protected speech); United States v. Eichman, 496 U.S. 310 (1990)(burning flag protected speech); Helen Herskoff & Adam Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896 (1991) (arguing that begging or panhandling is free speech). The Federal Court of Appeals for the Second Circuit struck a New York Ordinance outlawing begging. Loper v. New York City Police Dept.,1993 WL 285342 (2d Cir., July 29, 1993) (holding in the alternative, that begging is protected speech).

Although the First Amendment expressly forbids the abridgment of only "speech," the Supreme Court long ago recognized that speech does not begin and end with the written and spoken word. Texas v. Johnson, 491 U.S. 397, 404 (1989). To be sure not all conduct equates with speech, but "conduct may be sufficiently imbued with elements of communication to fall within the scope of the First Amendment." Id. at 404 (quoting Spence, 418 U.S. at 409). In deciding whether the conduct at issue possesses a sufficient communicative element to invoke First Amendment protection, the courts ask (1) whether there is an intent to convey a particularized message present, and (2) whether the likelihood is great that the message will be understood by those who view it. Spence, 418 U.S. at 410-11; Johnson, 491 U.S. at 404. Within this second prong, the courts advance a four-part balancing test that looks to: (1) the authority of the state; (2) if the regulation advances an important interest; (3) if the interest is unrelated to the suppression of free expression; and (4) if the incidental restriction is no greater than was essential to further that interest. Barnes v. Glen Theater, Inc., 111 S. Ct. 2456, 2461 (1991).

There are no published decisions accepting this position, but there are none rejecting it either. As to the first prong of the test, the issue turns on the homeowner's intent. If he or she intends to convey an artistic or political message then the test is met. Certainly, natural landscaping advances the three values Herskoff and Cohen find in begging:

Cf. Herskoff & Cohen, supra, at 898-904. To evidence that intent, the gardener should "advertise" the message. One way to accomplish this is to post a sign stating the purpose of the garden. See C.L. Gaylord, Marybelle's Eden, 92 CASE & COM. 31, 35 (1987) (describing how a natural landscaper posted Backyard Wildlife Habitat Certificate from National Wildlife Federation on a board coated with varnish to show neighbors and village officials that she was conveying a message about humankind's proper place within Nature by creating a natural landscape).

Furthermore, the case for natural landscaping as art would pass the Barnes four part test. The natural landscape used as art does not harm the moral fiber of the community as was the case with nude dancing in Barnes. The opposite is the case with natural landscapes. These landscapes are good for the community. The only basis for restriction on the natural landscaper's expression is the view by others that it is not the right type of yard for the neighborhood. Such a superficial reason, if a rational reason at all, see infra notes 163-77 and accompanying text, is surely insufficient grounds to stifle the free exercise of expression guaranteed by the First Amendment.

The argument that natural landscaping is a form of protected speech has been advanced by the NWF in an amicus brief to the Seventh Circuit in the Schmidling case relating to the Chicago 5. Amicus Brief, Schmidling v. City of Chicago, No. 92-1410; cf Genosick v. Richmond Unified School Dist., 479 F.2d 482 (9th Cir. 1973) (recognizing the First Amendment right for a student to wear an ecology symbol but granting no injunction because the school did not enforce its prohibition against displaying such symbols). Jack Schmidling has a National Wildlife Federation certificate posted on the fence surrounding his natural landscape.

[back to text]

¹³⁰ SIMON PUGH, GARDEN NATURE LANGUAGE (1988) writing that the natural garden of 18th century Britain is a visible display of class power). In describing the symbolic function of gardening, another author writes:

The emergence of the new landscape garden was prompted by a variety of motives that included the poetic and aesthetic and the practical and political. The English reaction to the formal garden had a nationalistic bent reflecting historic animosity toward that which was imported. They saw themselves "happily spared the absolutism of French politics" and felt their landscape gardens should also "be cleared of the ordered and fiercely prescriptive designs" that mirrored French politics. The new approach to gardening was “expressive of English 'liberty’ in contrast to French ‘tyranny' and formality." Such gardens as Versailles symbolized "autocracy and the absolute rule of man over nature"; the English reaction represented "constitutionalism and man's alliance with nature.” The English landscape garden "was an endorsement of liberty and tolerance against tyranny and oppression"; it became a "constitutional taste, like the preference for Shakespeare, wild and unruled .... “ The new landscape garden became and expression of England's national pride. . . . The object was to reproduce with as little artificiality as possible, the appearances of nature," but "nature must triumph over art." Nature was assisted but not controlled.

John Nivala, Our Nature in Balance. An Essay on Eighteenth-Century Landscape Gardening and Twentieth-Century Lawyering, 38 J. LEGAL EDUC. 305, 308-09 (1988).

Similarly, following the French Revolution, the citizens destroyed irises which where the symbol of the House of Bourbonand the basis for its crest the fleu-de-lee. They replaced that royal flower with daisies to symbolize their new political power. See generally JACK GOODY, THE CULTURE OF FLOWERS (1993) (describing in detail the symbolic and transactional uses of flowers, domesticated and wild, throughout history). A more recent example, is the "flower power" of the 1960s to protest the Vietnam war. Id. at 311.

[back to text]

^{131 Id}. at 291.

¹³² Artwork, like other forms of non-verbal speech, is entitled to some First Amendment protection. See, eg., Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1975) (allowing nudity portrayed in the rock Musical HAIR); Serra v. United States Gen. Serv. Admin., 847 F.2d 1045 (2d Cir. 1988) (protecting sculpture comprised of an arc of steel 120 feet long, 12 feet high and several inches thick); Contemporary Art Center v. Ney, 735 F. Supp. 743 (S.D. Ohio 1990) (protecting Robert Mappelthorpe photographs). Accordingly, the state must show a compelling interest to stifle the artist's expression. Watters v. TSR, Inc., 715 F. Supp. 819 (W.D. Ky. 1989), aff'd, 904 F.2d 378 (6th Cir. 1990) (prohibiting the imposition of liability on manufacturer of board game "Dungeons & Dragons" based on the content of the game, for suicide of a player on the theory that the game exerted some type of mind control over player that led to his withdrawal from society and eventual suicide).

In Sefick v. City of Chicago, 485 F. Supp. 644 (N.D. Ill. 1979), for example, the city failed to prove a sufficiently compelling reason for revoking an artist's right to display a sculpture satirizing public officials in the Civic Center. The argument that the sculptures were located in a high traffic corridor of a public building and the need to protect the members of the public who might object to the work, were rejected as not enough to overcome the artist's First Amendment rights. But see, eg., Davis v. Norman, 555 F.2d 189 (8th Cir. 1977) (assuming that front yard display of truck in which plaintiff 's son was killed following a high speed chase, along with a sign reading "Look what the police of Pine Bluff did to our friend Keith Davis" was protected speech, that speech interest was outweighed by city's interest in protecting public health and safety by prohibiting the unenclosed storage of abandoned, wrecked or inoperable vehicles); but cf. Running Fence Corp. v. Superior Ct. of Cal., County of Sonoma, 124 Cal. Rptr. 339 (Cal. Ct. App. 1975) (allowing artist to construct twenty-four mile fence along highway absent a showing of adverse environmental impact).

This argument was conceived by John Marshall Law School student Harvey Wright in connection with a class assignment on the issue of the constitutionality of the Chicago Weed Ordinance.

¹³³ 65 ILL. COMP. STAT. 5/11-46-2. Similarly, in Rhode Island the law provides that art includes "architectural landscaping" and "landscape gardening." R.I. GEN. LAWS § 42-75.2-3 (1992).

¹³⁴ 225 ILL. COMP. STAT. 315/3 (1992).

¹³⁵ 759 F.2d 625 (7th Cir. 1985).

¹³⁶ Id. at 628.

¹³⁷ See Chapman Kelley v. Chicago Park Dist., No. 88 C 6619, Complaint and Motion for Temporary Restraining Order (N.D. Ill. 1988).

¹³⁸ Barbara Sullivan, Gone to Sneed: How One Artist's Dream of a Wildflower Garden Turned into a Blooming Nightmare, CHI. TRIB., July 6,1988, at 15.

¹³⁹ ELIZABETH MURRAY, MONET'S PASSION, IDEAS, INSPIRATION AND IN SIGHTS FROM THE PAINTER'S GARDEN 3-6 (1989).

¹⁴⁰ Id. at 4.

¹⁴¹ Id. at ix.

[back to text]

¹⁴² Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 713-16 (1981) (stating that "[c]ourts are not arbiters of scriptural interpretation"). "Under the United States Constitution, an individual's right to believe or not to believe in anything he or she chooses is unquestioned." Stevens v. Berger, 428 F. Supp. 896, 899 (E.D.N.Y. 1977). Religious beliefs need not be consistent, logical or acceptable to others. Id. The threshold requirement to a claim based on First Amendment protection for religious beliefs is a showing that there is some reasonable possibility 1) that the conviction is sincerely held and 2) that it is religious in nature, rather than secular - for example, purely social, political or moral views. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that an Amish religious desire to keep children out of high school outweighed state interests in compulsory attendance law); Teterud v. Bums, 522 F.2d 357 (8th Cir. 1975) (holding that the wearing of long, braided hair by North Americans was a matter of religion, not esthetics).

However, inquiry into truth or falsity of religious beliefs is foreclosed by constitutional guarantees of religious freedom and courts may ask only whether the proponent of a particular religion holds his beliefs honestly and in good faith. Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940); Van Schaick v. Church of Scientology of California, Inc., 535 F. Supp. 1125, 1144-45 (D.C. Mass. 1982). A religious belief can appear to every other member of the human race preposterous, yet merit the protections of the Bill of Rights. The United States Supreme Court states:

Freedom of thought, which includes freedom of religious belief, is basic in a society of free men.... It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.... Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.

United States v. Ballard, 322 U.S. 78, 86-87 (1944).

However, when an individual chooses to act on his belief in good faith, his beliefs are subject to inquiry and his actions are subject to the power of the state. The inquiry as to beliefs is approached sensitively and broad latitude is afforded to permissive diversity, "lest established creeds and dogmas be given an advantage over new and changing modes of religious belief.” Stevens, 428 F. Supp at 900. The court in Stevens stated:

Neither the trappings of robes, nor temples of stone, nor a fixed liturgy, nor an extensive literature or history is required to meet the test of beliefs cognizable under the Constitution as religious. So far as our law is concerned, one person's religious beliefs held for one day are presumptively entitles to the same protection as the beliefs of millions which have been shared for thousands of years.

Id.

Thus, it becomes a matter of facts and evidence. Although courts may recognize intellectually the existence of new religious harmonies, "they respond more readily and feelingly to the tones the founding fathers recognized as spiritual”. Id.

The judicial scrutiny currently afforded laws that adversely affect the free exercise of religion is in a state of flux as a result of Employment Div. Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), reh’g denied, 496 U.S. 913 (1990). Writing for the majority, Justice Scalia said the Free Exercise Clause cannot be