Childlife Preserves
One example of the potential for new outdoor-education preserves is on Washington’s Bainbridge Island, where Debbie Brainerd and her husband, Paul Brainerd, former owner of the major software company Aldus, bought 255 acres and turned it into the nonprofit Puget Sound Environmental Learning Center, which the Seattle Post-Intelligencer called “a $52 million, 255-acre layout that melds the adventure of Tom Sawyer’s island with space-station technology and wilderness serenity.” Debbie Brainerd calls it “a magical place for learning,” particularly for low-income, underserved urban youths; it is a place where youths and teachers can stay for several days, using “all five senses to learn science, math, art, writing, technology and culture—and how subjects can be linked,” according to the Post-Intelligencer. An energy-efficient student dorm, called the “Birdsnest,” is made of hand-hewn wood and includes a “mud room.” Museum-donated fossils are imbedded in rock fireplaces. But children spend most of their time outdoors, exploring. This nature-focused learning center has been called “the world’s most innovative center for environmental education.” Though not every community has benefactors like Debbie and Paul Brainerd, a proliferation of smaller-scale child/nature preserves is possible and practical—given the high cost of brick-and-mortar classrooms.
The future of education, said Candy Vanderhoff, is in the outdoors. I walked with her as she headed through the cool woods down a little ravine and watched students spread out in solitude, writing, listening. Vanderhoff is an architect whose side specialty is indigenous shelters. Her personal goal is to photograph and catalogue South Sea island huts before they fade away forever. Several years ago, she found her way to Tijuana, Mexico, to help internationally respected artist James Hubbell create a school of earth and stone and tiles. In 2001, Hubbell urged her to take a lead role in a program for teenagers at Crestridge Ecological Reserve, a 2,600-acre parcel of mountainous land near El Cajon, California—the same place I visited with the boyz of the woods.
Crestridge is a new kind of park—part day camp, part nature preserve—a type that some communities across the country are creating and a model for what others should create.
Here, a partnership of several organizations, including Granite Hills High School, a conservation organization called the Back Country Land Trust, and Hubbell’s company have joined forces. At the time of my first visit, Hubbell and his son Drew were planning to construct “a nature kiosk at the head of the trail, a gate of sorts, a way to break out of one pattern and enter another,” as James put it. Construction will be “sustainable,” said Vanderhoff. Biodegradable. Recycled.
Later in the day, we hiked through the tangle of oaks and joined a half circle of students under an oak old enough to have sprouted when Lewis and Clark were scouting real estate. The kids sat on granite boulders pocked with wrist-deep acorn grinding holes created long ago by the Kumeyaay Indians. The group listened to Larry Banegas, founder of Kumeyaay.com, a Web site that tells the history of his people. Raised on the nearby Barona reservation, Banegas teaches what he calls “traditional knowledge.” He explained to the kids that the Kumeyaay “weren’t nomadic; they lived part of the year in the mountains and part of the year at the beach,” and were far from passive players in the wilderness. Among other techniques, they employed fire to open the chaparral canopy and allow the growth of plants used for food and medicine. They also created dams to trap river sediment, raising the water table and creating new wetlands for watercress and wild celery and lettuce. These manipulations of land and water contradict the Eden myth: that the Indians lived in a wilderness untouched by human intervention. What Banegas was saying lends weight, instead, to controversial new theories about the pre-Columbian Western Hemisphere: that it was much more populated and sophisticated than we have generally believed.
I wondered: What message will the students take home about human involvement in nature? Will they learn that humans have always shaped nature in order to sustain it, in order to survive? This question is at the heart of the future of environmentalism.
Later that morning, I mentioned a pet peeve to Vanderhoff. By the understandable rules of nature preserves everywhere, no kid will be allowed to build a tree house or fort on Crestridge Ecological Reserve—despite the fact that many of us, including environmentalists, first learned to engage nature by building forts in the woods. What happens when kids can no longer do that, when what remains is under glass?
Vanderhoff thought about this for a while, then went to her car and returned with a book about California Indian survival techniques. She pointed to an illustration of a hut, a Kumeyaay shelter framed in willow and covered by brush and tulles. “There!” she said, smiling. “That’s what kids could build here. Wouldn’t that be terrific?”
That it would.
TODAY’S YOUNG PEOPLE ARE, as we’ve seen, growing up in America’s third frontier. This frontier has yet to completely form, but we do know the general characteristics. Among them: detachment from the source of food, the virtual disappearance of the farm family, the end of biological absolutes, an ambivalent new relationship between humans and other animals, new suburbs shrinking open space, and so on. In this time of quickening change, could we enable another frontier to be born—ahead of schedule?
PART VI
WONDER LAND:
OPENING THE FOURTH FRONTIER
We have not merely escaped from something
but also into something. . . . We have joined the greatest of all communities,
which is not that of man alone but of everything which shares with us
the great adventure of being alive.
—JOSEPH WOOD KRUTCH
18. The Education of Judge Thatcher: Decriminalizing Natural Play
SOMETIMES IT SEEMS that Mark Twain’s Tom and Huck should pack it in—come home from the woods, plug in Becky’s PlayStation, and master the new Grand Theft Auto video game. If Becky’s father, Judge Thatcher, were to review the bizarre legal framework today covering children, recreation, the environment, and landowner liability, he might be puzzled by the phalanx of legal restrictions and homeowners’ covenants—which come from the left and the right—that favor electrical outlets over just about every form of natural play.
Asked for legal advice on this matter, the judge might log on to LexisNexis, the online legal database, and study up. Likely, he would seize on the one apparent bright spot in our legal structure: the so-called “recreational use” statutes adopted by many states in recent years.
“Ah, potential satisfaction!” he might mutter.
These laws were established to encourage landowners to allow people to recreate on their open land. For example, California Civil Code section 846 is calculated “to balance the need for increased recreational area with the concern of landowners regarding liability to entrants who use private land for recreation.” The statute states that a property owner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions. . . .” In other words, a landowner who permits people to recreate on his property is not required to guarantee their safety. The statute does not limit liability, however, in cases of “willful or malicious failure to guard or warn against a dangerous condition or for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration.”
“Whatever that means,” Judge Thatcher might say, crossing his eyes.
Also, the statute does not protect landowners from being sued by “any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” The statute doesn’t mention children specifically; that application is up to case law. But here’s one way to interpret the wording: a parent who invites kids to use the property or supervises their play (or whose own child invites another child over to play) is more vulnerable to lawsuit than a parent who doesn’t know who is on the property—or a parent who says
“okay,” in a generalized fashion and looks the other way.
At this point, Judge Thatcher might sit back, adjust his spectacles, and conclude that he had slipped into another universe, not just another century.
True, different attorneys can look into this statute and tell different futures. Ultimately, liability is determined by the interpretation of a particular court, and the courts have been inconsistent, to say the least. For example, in 1979, a California judge in Santa Clara Valley ruled that the recreational use statute did not protect a property owner. In this case, a girl fell while riding her bike across a bridge on private property. Since she was not “recreating,” the landowner was found liable. Got that? In another case, however, a landowner was granted immunity when a child was injured climbing a tree on his property.
“Go forth and figure!” Judge Thatcher might exclaim.
Upon further contemplation, he might well consider leaving the bench to become a trial attorney. Scratching his muttonchops, he would begin to think—about Tom painting that fence, from a public sidewalk?—And about that incident at the cave—with his very daughter! Who owned that cave?
“Why, the very idea!” he might say. “Becky, come here. Right now. I want to ask you a few questions . . .”
Natural Tort Reform, and Other Remedies
As a powerful deterrent to natural play, fear of liability ranks right behind the bogeyman. One goal in the fourth frontier should be a nationwide review of laws governing private land and recreation, especially involving children. This review process should be public; it should invite parents, children, experts on child’s play, and others to offer testimonials. And it should be done with the goal of protecting both the child’s safety and the child’s right to natural play. It should focus on reducing the anxiety of parents and children—and the fear of lawyers that, even if only subconsciously, adds to modern barriers separating children from natural play. 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 issue is not only a question of the letter of the law, but also the spirit.
In the public domain, part of the solution is a change of official attitude. Many of the restrictions on kids’ play, particularly the environmental rules designed to protect nature, are rational, if applied with a sense of proportion. For example, rather than serving citations, or chasing kids away without explanation, park rangers could focus on nature education, teaching families and the young how to enjoy the outdoors without being destructive. Many rangers are doing these things already—when they are not understaffed and overwhelmed by other duties. But let’s be realistic. As long as cities continue to overdevelop housing tracts and underdevelop parks and other sites for natural play, our regional parks and beaches will be crushed by demand, necessitating ever more stringent enforcement. The ultimate remedies aren’t to lift the restrictions on endangered habitat, but to create or preserve more natural places to play—including the vacant lots and ravines and backyards of our own neighborhoods—and to reduce private vulnerability to lawsuits and fines.
One way to confront the litigious barriers to natural play is to create more naturally landscaped public parks and more heavily insured private play spaces. These would be, essentially, legally protected, natural-play reservations—something like the Crestridge Reserve. Environment-based education expert David Sobel proposes the creation of what he calls “environmental sacrifice zones.” Play reservations, if you will. “It’s good to have streams where kids can dam and obstruct the ecosystem; the nature of that play is more important, and worth it to the environment in the long term,” he says. “Kids aren’t supposed to play on the dunes, because that creates erosion, which undermines the foundations of houses along the shore. But some dunes ought to be accessible for dune play, even though a bit of damage might occur as a result. When I say that, people roll their eyes. You can make that same argument about tree houses, which undeniably damage the tree, but that occasional damage to a tree is not as important as what children learn when playing in that tree.”
Even with the creation of many such play areas, families and neighborhoods will still face an array of laws, regulations, and private restrictions on outdoor play; but options exist.
A private neighborhood could potentially overcome liability issues by following the lead of the Skate Park Association of the USA, a group started by a Santa Monica mom in 1996. Let’s say a skate park joins the organization. The fee is currently $40 a year for private parks and $120 a year for city parks. Individual skaters sign up for a nominal fee. In return, the skater receives $100,000 excess medical coverage while in a sanctioned park or anywhere else, and $1,000,000 liability insurance in the park. This arrangement suggests interesting possibilities for more natural play: the Sierra Club or some other major environmental organization could someday offer a similar group insurance policy.
Another option is that every family, with or without children, consider increasing its liability insurance coverage. The American Insurance Association suggests that a standard homeowner’s insurance policy will cover liability for, say, a tree-house accident, but homeowners should still check their coverage. The typical homeowner policy carries on-site accident coverage of only $100,000. Some insurance experts recommend buying extra liability insurance. The price of an umbrella policy, providing $1 million worth of coverage, to accompany a homeowner policy, is, in fact, modest—usually about $200 a year; add another $50 and gain an extra million in coverage. Some umbrella policies will cover empty lots, too. The problem here is if the bar is set at $1 million, someone’s going to sue for $2 million. Where, short of legal reform—or a fortified system of peer review to stop frivolous lawsuits—does it end?
“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, from Bill Bradley and George McGovern to Newt Gingrich and Alan Simpson. 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.
In July 2005, the South Florida 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. “They’ve got moving parts. Moving parts on equipment is the number one cause of injury on the playgrounds,” explained Broward’s safety director, who ordered the no-running signs. And cement crawl tubes? Gone. “The longer they are, the higher possibility that a vagrant could stay in them,” he explained. Is such fear warranted? Depending on which study one chooses to believe, in the United States, the public’s urge to sue is falling, holding its own, or rising after a brief hiatus. 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, some consumer attorneys 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.
Confronting this perception requires 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.
Common Good calls for systemic reform that transcends the current definition of tort reform, which focuses almost entirely on capping the size of awards in lawsuits. True, sometimes it takes a huge settlement to change the behavior of a powerful offender. But capping damages or blocking access to the cour
ts does little to reduce the number of lawsuits, and, according to Howard, protects only one side: “That approach lacks our guiding principle: a focus on society as a whole.” 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.”
Great Britain is arguably moving faster toward this goal than the United States. In 2003, in England, an eighteen-year-old named John Tomlinson dived too sharply at a public lake and broke his neck. The Cheshire County Council had been aware of the risk; had already posted “no swimming” signs and planned to close off the lake by dumping mud on the beaches and planting reeds. But before the barrier of reeds was planted, Tomlinson took his dive. His lawyer argued that the Cheshire Council should have acted sooner, and Tomlinson won. At the appellate level, the decision was overturned; the court declared that a claim should be hinged not just on whether an accident is foreseeable but also on “the social value of the activity which gave rise to the risk.” Permitting Tomlinson’s claim would deny hundreds of thousands of people enjoyment of the park. The court offered this common-sense summary: “There is an important question of freedom at stake. . . . Does the law require that all trees be cut down, because some youth may climb them and fall?”
While we wait for legal reform, environmental attorney Brian Schmidt has an idea that just might help. Schmidt is an advocate with the Committee for Green Foothills, an organization working to protect local natural environments in the South San Francisco Bay Area. 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. Volunteer lawyers for the Defense Fund would focus on the most frivolous, high-profile claims, or those claims that would establish the worst precedents. He suspects that the outdoor industries would be interested in funding such a foundation. “Obviously, regardless of how successful this idea could become, it will never cover all the costs of defending against all the frivolous lawsuits,” he adds. “Still it could help, and just the fact that a defendant knew it was possible to recover costs might make the defendant less likely to settle.” It would also send a public message that natural play is still valued.
Last Child in the Woods: Saving Our Children From Nature-Deficit Disorder Page 25