Richard Louv

Recipient of the Audubon Medal

Author of the National Bestseller Last Child in the Woods

From the Blog

Enough is Enough. Time to Confront Legal Barriers to Gardens, Nature, Just Being Alive

File this under: You Can't Make This Stuff Up. In Oak Park, Mich., a woman faced a jail sentence for the plants in her front yard. "The illegal growth is tomatoes. And zucchinis, peppers and other edible and what normally be legal plants," ABC News reported. "The officials in Bass' hometown....have charged her with growing 'vegetable garden in front yard space.' If convicted, she could have spent up to 93 days in jail."  The case was been widely reported. Jason Knapfel, writing for DietsinReview.com, surmises, "Apparently the difference between a green pepper and a bush is enough to possibly land the vegetable grower in jail for three months."

The city officials enforcing the rules aren't the issue. They're usually just doing their job. The real question is why the public puts up with and even encourages such restrictions, whether they're written by public officials or private governments. Around the country, city ordinances and community association regulations have targeted children as well as adults. In April, homeowners in a Silver Springs, Fla. community, ostensibly concerned about "safety," tried to ban children from playing outdoors, and proposed fines of $100 for each transgression. When such cases (usually more nuanced than they're reported) reach the news media, they're usually dismissed, as happened with the Oak Park charges. But what about all the ones that don't get coverage?

A countertrend is building.

Across the country, other homeowners are taking on city hall (and to a lesser degree, private community associations), pushing for ordinances to allow vegetable gardens, urban chickens, and bee hives (even in New York City); it's part of the naturalization of cities that I report on in THE NATURE PRINCIPLE. Nonetheless, the legal barriers to experiencing nature, at any age, are likely to continue, unless a deeper philosophical and legal challenge is made.

So for several years, I've been proposing a National Conference on Children, Nature and the Law, organized by the legal profession with a little help from insurance companies, educators, health care folks, policy-makers, and others. This conference is a fiction, so far. But somebody needs to step to the plate -- and it should probably be extended to the impact on adults, as well. Here's that proposal, which I originally published in my blog for the Children & Nature Network:

As a powerful deterrent to natural play, fear of liability ranks right behind the bogeyman. Parents are afraid to let their kids build a tree house in the backyard. School administrators are afraid to create natural play places (even though they tend to produce fewer injuries than playgrounds with typical play structures). In July 2005, The Fort Lauderdale (Fla.) Sun-Sentinel reported that Broward County schools had erected “no running” signs at 137 elementary schools, as one of several steps to cut down on injuries and lawsuits. Playground merry-go-rounds and swings were already history.

In LAST CHILD IN THE WOODS, I reported the virtual criminalization of natural play. In some cities, young people who try to recreate their parents’ childhoods may face misdemeanor charges or see their parents sued.

Most residential communities built in the past three or four decades are controlled by covenants and restrictions, and private governments — community associations — that essentially criminalize natural play. One woman told me her community association banned chalk drawing on the sidewalks. Just try to put up a basketball hoop in some of these neighborhoods, let alone let the kids build a fort or tree house in the field beyond the cul de sac. If it’s like my neighborhood, adult officials will tear down that fort or tree house within days.

Other stringent restrictions on children’s outdoor play spring from our efforts to protect nature from human population pressures. In my city, it is illegal to “injure, destroy, cut or remove any tree … [or] plant … growing in any city-owned park … without written permission from the city manager.” But what exactly constitutes “to injure?” Does a child seriously injure a tree by climbing it? Some think so.

So because of fear of litigation, and pressure from parents themselves, Girl Scouts can no longer climb trees at Girl Scout camp. Kids all over the country are hearing a double message from the adult world: Get off the couch, go outside, but oh, by the way, we don’t really want you doing anything out there. Other than organized sports.

This isn’t an exaggeration. Parents know this. Teachers know it. But our institutions and legal profession haven’t received the memo. That’s why we need a national conference.

The legal profession, including consumer attorneys, would find such a conference to be in their interest. Depending on which study one chooses to believe, in the United States, the public’s urge to sue may be rising, holding steady or even falling. Uncertainty about such statistics is aggravated by the fact that most lawsuits are settled out of court and are poorly tracked. And no one keeps track of the number of threatened lawsuits — which may have more impact on public behavior than judges and juries. In fact, there are consumer attorneys who attribute ulterior motives to some public officials who raise the specter of potential lawsuits, which may be easier and cheaper than investing public funds in, say, new playgrounds or lifeguards. Whatever the truth, perception rules.

“Legal fear has infected the culture,” argues Philip K. Howard, author of “The Death of Common Sense” and “The Collapse of the Common Good.” Howard is founder of Common Good, a bipartisan coalition with advisory board members ranging from conservative to liberal. Howard wants to help restore reliability to law — to come up with ways to determine acceptable or healthy levels of risk. “Polls and focus groups show that educators will do almost anything to avoid the unpleasantness of legal hearings, says Howard. Confronting this perception will require action on several fronts: the introduction of comparative risk as a legal and social standard, new applications of insurance, and the design and legal protection of public play areas.

This approach transcends the current definition of tort reform, which focuses almost entirely on capping the size of awards in lawsuits.

True, some kind of tort reform is needed, but sometimes it takes a huge settlement to change the behavior of a powerful offender. And capping damages or blocking access to the courts does little to reduce the number of lawsuits. Nor does the traditional approach to tort reform serve to educate the public about the nature of risk; some are beneficial — small risks taken early (and the natural world is good place to take those risks) can prepare children to avoid more onerous risks later in life.

Want a real risk? Check out the rise in child obesity. Pediatricians now worry that the current sedentary generation of children will be the first in our history to have a lower life expectancy than their parents’ generation.

So, what might be on the agenda of a national conference?

– Common Good is calling upon judges and legislatures to create clearer standards on who can sue for what. Among other proposed changes, Howard calls for the creation of public risk commissions that would examine areas of our lives that have been radically changed, “such as our enjoyment of outdoors and children’s play.”

– A nationwide review of laws governing private land and recreation, especially involving children. This review should be done with the goal of protecting both the child’s safety and the child’s right to play in natural settings. As part of this conversation, community associations should review their covenants to decide where they stand on the criminalization of nature play. Public governments should do the same. This is not only a question of the letter of the law, but also the spirit.

– A review of legal barriers to nature experience, and equity of access to nature, depending on the economic and ethnic makeup of neighborhoods.

– How to balance legitimate concern about the destruction of nature with the need to develop, through personal experience, a future constituency for conservation. One long-term remedy: rather than lift restrictions on truly endangered habitat, preserve or create more natural places to play—including natural parks, and the vacant lots and ravines and backyards of our own neighborhoods.

– How to support the creation of new kinds of play spaces where experience in nature can be encouraged, with a reasonable amount of risk, and supervised by play supervisors who know how to let kids be kids. (As long as cities continue to overdevelop housing tracts and under-develop parks and other sites for natural play, our regional parks and beaches will be crushed by demand, necessitating ever more stringent enforcement.)

– A survey of legislation or regulation already on the books that can protect natural play. For example, Good Samaritan laws, or laws that in some states provide liability protection for ranchers or farmers when hunters or anglers come on their land. Which of these protections can be replicated or adapted for natural play?

– Can community or environmental organizations offer group insurance policies similar to ones that exist for, say, skateboard parks? Do current homeowner insurance policies typically offer enough coverage? How can schools and parents buy extra liability insurance to give them the peace of mind necessary to allow kids to build that fort or treehouse?

– How are other countries facing this issue? (Great Britain is arguably moving faster toward this goal than the United States, particularly by their approach to comparative risk, an idea that is either muted or nonexistent in our judicial system, where juries tend to perceive all risk as bad. “There is an important question of freedom at stake, said one British magistrate. Does the law require that all trees be cut down, because some youth may climb them and fall?”)

While we wait for legal reform, Bay Area environmental attorney Brian Schmidt has an idea that just might help. To liberate natural play, he suggests the creation of what he calls a Leave No Child Inside Legal Defense Fund, a foundation that would pay the legal defense costs of select institutions and individuals who encourage children to go outdoors, but are then hit with frivolous lawsuits. If nothing else, such a fund would send a public message that natural play is still valued.

Sending that message would be a primary goal of a National Conference on Children, Nature and the Law, as proposed by C&NN. Such a conference would produce policy recommendations, but it should also publish a free online pamphlet for parents, educators, policy-makers and others, offering practical suggestions for how to start making changes now.

And let's follow that effort with an even larger one to address the legal barriers that prevent our cities from becoming healthier, more natural places in which to live, learn and work -- for adults as well as children.

__________________

In 2010this proposal was presented in a keynote address at the 23rd annual conference for the National Association of Environmental Law Societies, hosted by the Loyola University New Orleans College of Law and the Loyola Environmental Law Society.

Richard Louv is founding chairman of the Children and Nature Network, where a version of this essay originally appeared. His newest book is THE NATURE PRINCIPLE: Human Restoration and the End of Nature-Deficit Disorder. He is also the author of LAST CHILD IN THE WOODS, which includes a Field Guide of 100 Actions for families, teachers, and communities.

Next post: The Eye of the Tree

Prev post: Applying the Nature Principle: a Boost to Education, an Antidote to Teacher Burnout

Comments

Yes! What’s happened to common sense? 

I wrote about coming up with a Universal Release (of liability) - so our kids can be kids again. By all means, keep a national database of parents who sign liability forms so their kids can “run on the blacktop at the school playground.” I bet most parents would sign one.

(http://blogs.ocfamily.com/2011/02/27/universal-release/

I think getting the insurance companies and legal profession involved in the discussion - and coming up with some viable solutions is key. Thanks for putting your proposal out there again. I hope someone takes it on.

I fully support this idea of a national conference.

How can i find out more info on the legal side. i am hoping to set up a community space on some land in the city, i am thinking of getting non-profit status and putting the land under that. Besides the land, i have no money or possesions, and the only requirment of the community space is that at no point is money used in any way (only physical enery and wastes). Therefore, i have nothing i can see to lose in a lawsuit except the land itself.

Thanks for putting this call out there, Richard. There are a number of issues involved, some only loosely connected. I’m going to add another one.

A huge problem is permits for organizations to take youth outdoors on public land. Where I live in Montana (yes, the place with all the big open spaces) it is difficult and sometimes impossible for non-profits to get permits to take youth onto public land (US Forest Service, Nat’l Park Service, etc). My work connects with with organizations in all areas of the country and this is a problem everywhere…well intentioned permit systems have become a bureaucratic nightmare strangled by restrictive quotas.

Safety is another issue. “Safety” rules, in some cases, go to far in attempting to eliminate all risk (and failing to differentiate between real and perceived risk). This coming from someone who make a living helping organizations address safety issues (http://www.outdoorsafetyinstitute.com).

Thanks for this call and I look forward to hearing more and helping if possible.

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I think getting the insurance companies and legal profession involved in the discussion - and coming up with some viable solutions is key.

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This is strange indeed - it is also if the authorities would not want people to feel good and connect with the earth. In Russia there is a growing movement as a result of the Anastasia book series written by Vladimir Megre. Worth checking out!

I think that the whole legal torts concept of an “attractive nuisance” needs to be abandoned for private residences.  I would say, if you enter my yard, you assume the risk, period.  If you do not want to assume the risk, don’t enter my yard.

I’ve done some amazingly fun renovations to my yard and invite all neighbors over any time.  It’s definitely lifted the quality of life of my kids and neighbor kids, but many visitors say they wouldn’t do what I did for fear of liability.  Hogwash!!!

I’d be *very* happy to speak on this at a conference.  (I speak frequently about Playborhoods.)

Here are some articles on our yard:

http://playborhood.com/2009/08/our_front_yard_family_room/
http://playborhood.com/2011/05/a-neighborhood-map-on-our-driveway/
http://playborhood.com/2009/09/our_back_yard_open_playful_in_a_land_of_fences/
http://playborhood.com/2010/02/a_trampoline/

This blog is really superb. Every updates of this blog is meaningful and encouraging. I like to read this post. Thanks smile

For me this just sums up how crazy and over protective the world has become…

This quote is just plain madness…

..“So because of fear of litigation, and pressure from parents themselves, Girl Scouts can no longer climb trees at Girl Scout camp. Kids all over the country are hearing a double message from the adult world: Get off the couch, go outside, but oh, by the way, we don’t really want you doing anything out there. Other than organized sports”...

We complain that kids spend too much time locked away on computers but there are now restrictions to stop them harming trees when climbing and having fun!!!!

I am sure many people are not aware of such laws and would not be happy if they were aware of them…Thanks for bringing it to a wider audience.

Oh what a waste of taxpayers money. Honestly where has the common sense gone -if this woman had been growing drugs that is a different story but vegetables.  The law enforcers need to tackle real criminals and let ordinary individuals get on with their lives.  The silly laws are enforced yet the more serious crime investigations are often under resourced.  This needs to be tackled and quickly

I’ve found that the real question is why the public puts up with and even encourages such restrictions, whether they’re written by public officials or private governments. Thanks mate smile

Looks like rools from other planet. In my garden I planted flowers, cucumbers, tomatoes, eggplant, strawberries and raspberries. Can you imagine how many years I will stay in jail for so many plants?

That is the stupidest thing I have heard of-it is in her own yard-but I have heard of strata dictating what landscaping you can have in your yard!  I am a gorrilla gardener and I plant wild stuff anywhere I see that needs it!

“Most residential communities built in the past three or four decades are controlled by covenants and restrictions, and private governments — community associations — that essentially criminalize natural play.”

So sad to hear this. When I was a kid, I used to play with my friends on the street. It sure was fun. I hope people will be open to the reality that the ‘older days’ are more fun. Where blackberry and apples are just fruits.. :D

.I’ve found that the real question is why the public puts up with and even encourages such restrictions, whether they’re written by public officials or private governments. Thanks mate..

I agree why does the public put up with these kinds of restrictions?

This is incredible!  No wonder we are plagued with such health problems, growing natural healthy food should be applauded not penalized!

Gardening is essential skill that everyone should adopt. Relying on large corporate companies to produce all our food is freighting when we know they typically put profits before our safety.

This is crazy and we are finding the same thing happening in Australia with local councils having too much power way beyond any sensible justification.

You even have to have a permit for things that were free for the last 100 years!

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