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San Diego Law Review

Daniel Wilkes

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466

Document Type

Article

Abstract

Between 1849 and 1965, San Francisco Bay shrank from 700 square miles to its present 400 square miles before a halt to piecemeal filling stopped its irreversible destruction. This loss should have been foreseeable. When decision makers work on an ad hoc basis, it is logical that they would look no further than the proposal at hand. Any objections considered were solely from those parties already using the Bay. In Florida, a series of decisions taking fresh waters away from the Everglades National Park now threatens to destroy entirely the ecology of the Everglades. The existence of this threat illustrates why coastal decisions must anticipate conflicting uses, not simply wait for them to arise. First, the applications to divert waters heading for the Everglades for large agricultural and industrial projects were considered one by one without weighing their future impact on the park itself. Second, the objecting users of the fresh water have no interest in protecting future shrimpers using the Gulf of Mexico; yet the shrimp cycle off Florida begins and ends with a trip to reproduce in the special salinitity of the Everglades. Third, there will be no time for corrective action after the decisions are made. Fortunately, the fresh water diverted for adding crops and products had been matched by three full years of rainfall. However, when the next dry year comes to the Everglades the damage to its unique swamp ecology will be the direct result of past failures to build anticipatory uses into decisions in that area. This Article's concentration on these neglected future uses does not mean that they must invariably be given priority over those already existing. Indeed, there are often sound reasons after all considerations are weighed why existing users should be preferred over potential ones. A simple solution would be to establish an inflexible rule that, if any conflicts arise, present activities must prevail. The fallacy here lies in the fact that protecting the user's expectancies is but one aim of a just system; allowing room for satisfaction of new social or economic needs is also an aim which the same system is "expected" to serve. In short, the law is also expected to take future uses into account. Finally, while this Article urges that bolder steps be taken to make consideration of anticipatory uses routine, the concept itself is far from new. For instance, some state laws, such as Massachusetts' Wetlands Law and Rhode Island's Intertidal Salt Marsh Law, already have halted the indiscriminate filling of tidal marshes. Thus, in a presently unused area, future recreational and commercial fishing activities dependent on a marsh ecology can be preserved. If other resources are to receive the same protection, we must 1) analyze why our present procedures have failed in the past, and 2) provide devices to make routine what has hitherto been crisis-born.

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