Conservation of natural resources (such as soil, water and air) has been addressed by U.S. laws for more than 80 years; environmental concerns have been the focus of attention for approximately 50 years.  These efforts have culminated with laws that often impact the use of natural resources, including privately-owned resources, such as land.  This web page introduces some legal limitations on how land and water can be used.  The discussion also reviews the limit of government authority to direct the use of privately-owned land.

Police Power Revisited

To begin this discussion, it is helpful to recall that government is authorized to exercise police power; that is, to impose requirements, restrictions, and limitations on the activities of individuals to promote the health, safety and general well-being of society.

• "such [police-power] restrictions are the burdens we all must bear in exchange for '"the advantage of living and doing business in a civilized community."'" North Dakota Supreme Court in Southeast Cass Water Resource Dist. v. Burlington Northern Railroad, 527 N.W.2d 884 (N.D. 1995) citing United States Supreme Court in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007 (1984).

A proper exercise of police power does not entitle an individual who is adversely impacted by the government action to be compensated.

• "A city generally need not compensate a landowner when a valid police-power regulation affecting the use of land decreases the value of the property." Buegel v. City of Grand Forks, 475 N.W.2d 133 (ND 1991).

But there is a limit to government authority to regulate activities.

• "Regulations that deny the property owner all "economically viable use of his land" constitute one of the discrete categories of regulatory deprivations that require compensation ... [T]he question [of whether the landowner is to be compensated] must turn ... on citizens' historic understandings regarding the content of, and the State's power over, the "bundle of rights" that they [the citizens] acquire when they [the citizens] take title to property. Because it is not consistent with the historical compact embodied in the Takings Clause that title to real estate is held subject to the State's subsequent decision to eliminate all economically beneficial use, a regulation having that effect cannot be newly decreed, and sustained, without compensation's being paid the owner. However, no compensation is owed ... if the State's affirmative decree simply makes explicit what already inheres in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Excerpts from syllabus of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (U.S. Supreme Court).

A government action that is not a proper exercise of police power will likely be considered a taking entitling the impacted individual to be compensated or to have the government action reversed.  Thus the issue often becomes "was the government action a proper exercise of police power or was it a taking?"

This web page addresses the question of "what limitations has federal, state and local governments imposed on my activities for the purpose of preserving our natural resources and environment."

What can a landowner do on their land? What restrictions might be imposed on a landowner's activities on their land?

A general rule could be "a landowner is allowed to do any activity that is not prohibited."  Thus the focus of this questions is on prohibitions or restrictions.

Common law restrictions

Before the government took an active role in directing the use of private property, it was primarily neighbors who would take legal action if someone's activities "got out of line." For example, nuisance (and tort law, in general) was the primary law for resolving disputes over activities on private property -- "I cannot do something on my land that interferes with your use and enjoyment of your land," such as, I cannot generate an unacceptable amount of smoke, noise, odor, dust, etc. Nuisance law is generally enforced by adjacent landowners -- not government (emphasis on generally, there are always exceptions).  Therefore, tort law allows a neighbor to influence how a landowner might use their property. For example, tort law could prohibit a landowner from using the property for a livestock feedlot if the neighbor successfully argues that the noise, odor and dust from the livestock operation would be a nuisance.

A secondary impact of preventing a nuisance is the broader implications for air and water quality in the community; for example, if a landowner cannot operate a feedlot (and thereby not cause a nuisance), the air and water quality (the natural environment) of the overall community is impacted.  This secondary impact suggests that society can rely on tort law to protect its natural environment.  But does tort law effectively address environmental issues? The general answer is no.

It is difficult for one person to rely on tort law to resolve environmental issues.  The injured person would need to individually sue all persons who could possibly have contributed to the environmental concern, such as all up-stream water users who might have somehow contributed to polluting the water that is reaching the injured plaintiff.  Such a series of court cases would be an expensive and time consuming process for one individual -- and there would be no assurance of a solution because each defendant is likely to argue "I did not cause the pollution".  For this reason, tort law has NOT been an effective legal solution to environmental concerns.

More recently (e.g., during the past century), government at all levels (federal, state and local) have taken a more active role in directing land use to protect the environment. This is different than relying on neighbors to enforce a concept like nuisance. The following sections present examples of laws that direct how individuals can use their private property.

• However, will there be a resurgence of tort law in addressing environmental problems? For example, consider the role of Natural Resource Trustees under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Oil Pollution Act (OPA). Will claims of bodily injury, property damage, and diminution in property value, based on tort theories of negligence, trespass, nuisance, strict liability, conspiracy and fraud, breach of duty to warn, etc provide the foundation for future tort actions? Note however, that the plaintiff in these cases are public entities, not private individuals.

Zoning by local government

An alternative to tort law is for the local government to impose restrictions on how landowners can use their property:

• "For the purpose of promoting health, safety, morals, public convenience, general prosperity, and public welfare, the board of county commissioners of any county may regulate and restrict within the county ... the location and the use of buildings and structures and the use, condition of use, or occupancy of lands for residence, recreation, and other purposes." N.D.C.C. §11-33-01.

• Note the language in the statute emphasizing that the purpose of this authority aligns with the general concept of police power; that is, promoting health, safety, morals, etc.
• Also note the breadth of the county's authority, that is, the authority to regulate and restrict ... the location and use of buildings and structures, and the use of lands for other (any?) purposes. This state statute grants the local government (the county, in this statute) broad authority to regulate activities on private land.

A second example: "For the purpose of promoting health, safety, morals, public convenience, general prosperity, and public welfare, the board of county commissioners of any county is hereby empowered to regulate and restrict ... the subdivision of land (N.D.C.C. §11-33.2-02).

A third example: "A board of county commissioners may regulate the nature and scope of concentrated feeding operations permissible in the county; however, if a regulation would impose a substantial economic burden on a concentrated feeding operation in existence before the effective date of the regulation, the board of county commissioners shall declare that the regulation is ineffective with respect to any concentrated feeding operation in existence before the effective date of the regulation." N.D.C.C. §11-33-02(2).

• Note the limit the legislature placed on the county commissioners ("however, if a regulation...") -- was that restriction in the statute due to political "urging" that the legislature not grant the counties too much authority, or was it due to the legislature recognizing the constitutional limits that the county must comply with, or was it perhaps a combination of these and other reasons?

• Note how this statute codifies the idea that an existing activity that was not illegal at the time it was initiated should not be substantially burdened by a subsequent regulation. This is consistent with the U.S. Supreme Court statements in the Lucas case that a regulation that eliminates all economic value of a property right held by an individual is a taking.

Continuing the third example: "A regulation may not preclude the development of a concentrated feeding operation in the county. A regulation addressing the development of a concentrated feeding operation in the county may set reasonable standards, based on the size of the operation, to govern its location." N.D.C.C. §11-33-02 (3).

"A board of county commissioners may not prohibit, through regulation, the reasonable diversification or expansion of a farming or ranching operation." N.D.C.C. §11-33-02(5).

• Again, are these state  limitations on local government authorities are reflection of political values?  Recall the previous statement that "our laws reflect our values."

In summary, state law often grants local government the authority to promote the health, safety and general well-being of the community through the use of "police power" to regulate activities on private land as long as the regulation does not "take" the individual's property rights.

Does zoning law effectively address environmental issues?

Arguably, local government can address environmental issues by controlling the use of land in the community to promote the health, safety and general well-being of the community (e.g., zoning).  Two factors, however, render local zoning as an ineffective solution to environment:

Local government's jurisdiction is limited to the city, township or county; environmental impacts move (e.g. polluted air and polluted water).  Without a coordinated approach among adjacent local governments, one community's regulation of environmental impacts might be negated by an inconsistent environmental strategy of a nearby community.

Environmental regulation is perceived as a cost to local businesses; that is, there is a cost associated with complying with environmental mandates.  If one community imposes a regulation (cost?) on a business, will the business move to a community without such regulation and cost?  Does unilateral regulation adversely impact the community's business climate?  What economic incentive do community leaders have to risk driving businesses to other communities by imposing regulatory costs?  For this reason, few communities are willing to aggressively regulate environmental concerns.

Does state law effectively address environmental issues?

The same economic question arises at the state level; why should a state regulate environmental concerns if the outcome is a risk that businesses will move to other states without such environmental costs?

Due to limited environmental regulation by state and local governments, the federal government began to address environmental issues in the late 1960s.  Federal environmental laws are addressed in this section of the course.

The same question is now arising at the international level; why should a nation address environmental concerns if the outcome would be to drive businesses to other nations?

The next several topics describe U.S. federal laws that impact land use.

Endangered Species Law

Source: Endangered Species Act at 16 U.S.C. 1531 et. seq.

The U.S. Congress has taken steps to reduce the risk that an animal or plant species will become extinct. The relevant statute is the Endangered Species Act (ESA).  But the impact of this law is felt by federal and state government and by private land owners.  To understand the ESA, this section first overviews the law and then discusses its impact on private landowners.

Overview of ESA

• "The purposes of [the ESA] are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes.
• "The purpose of the ESA is to conserve "the ecosystems upon which endangered and threatened species depend" and to conserve and recover listed species. Under the law, species may be listed as either "endangered" or "threatened". Endangered means a species is in danger of extinction throughout all or a significant portion of its range. Threatened means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened." Source -- U.S. Fish & Wildlife Service; ESA Basics -- Over 25 years of protecting endangered species.
• Congress set forth findings, purposes, and policy to explain the role of the Endangered Species Act -- "The Congress finds that

• "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;
• other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;
• these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;
• the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction ... and
• encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants."

• "The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species ..."
• "... all Federal departments and agencies shall seek to conserve endangered species and threatened species, shall utilize their authorities in furtherance of the purposes of this [act, and] shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species." 16 U.S.C. §1531.

Agencies Administering the ESA

The ESA is primarily administered by the "Fish and Wildlife Service (USFWS) in the Department of the Interior and the National Oceanic and Atmospheric Administration (NOAA)-Fisheries in the Department of Commerce..."

• Generally, USFWS manages land and freshwater species, while NOAA manages marine and "anadromous" species.
  • FYI:  anadromous species live their adult lives in the ocean but move into freshwater streams to reproduce or spawn (e.g., salmon).

The Environmental Protection Agency (EPA) also has a role in administering the ESA.

• The EPA determines whether pesticide use in a certain geographic area may affect any listed species.

Process of Administering the ESA

"Under the ESA, species may be listed as either endangered or threatened. "Endangered" means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened."

Regulations for declaring a species as endangered or threatened

• 50 C.F.R. §17.11 and §17.12.

Impact of the ESA

"The ESA makes it unlawful ... "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” Through regulations, the term “harm” is defined as “an act which actually kills or injures wildlife.  Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

Destroying habitat is a taking of an endangered species even if the habitat is located on private land. Preventing the destruction of habitat is probably the frequent concern or issue that arises from the ESA because it impacts the use of land, including privately owned land.

• "The ESA also requires the designation of “critical habitat” for listed species when “prudent and determinable.” Critical habitat includes geographic areas that contain the physical or biological features that are essential to the conservation of the species and may need special management or protection. Critical habitat designations affect only Federal agency actions or federally funded or permitted activities. Federal agencies are required to avoid "destruction" or "adverse modification" of designated critical habitat."

Federal agencies are required to consult with USFWS before proceeding with a federal project that could affect an endangered species.

The ESA impacts private land and its owners.

• "Two-thirds of federally listed species have at least some habitat on private land. The FWS has developed an array of tools and incentives to protect the interests of private landowners while encouraging management activities that benefit listed and other at-risk species."

• "Landowners can receive a permit to take such species incidental to otherwise legal activities, provided they have developed an approved habitat conservation plan (HCP). HCPs include an assessment of the likely impacts on the species from the proposed action, the steps that the permit holder will take to minimize and mitigate the impacts, and the funding available to carry out the steps."

• "Private landowners, corporations, state or local governments, or other non-Federal landowners who wish to conduct activities on their land that might incidentally harm (or "take") a species listed as endangered or threatened must first obtain an incidental take permit from the U.S. Fish and Wildlife Service."

• "To obtain [an incidental take] permit, the applicant must develop a Habitat Conservation Plan (HCP), designed to offset any harmful effects the proposed activity might have on the species. The HCP process allows development to proceed while promoting listed species conservation. "
• Also see http://www.fws.gov/endangered/esa-library/pdf/hcp.pdf.
• The "HCP" web page also describes the "No Surprises" Rule for private landowners; that is "private landowners are assured that if “unforeseen circumstances” arise, the FWS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP".

The following excerpts offer additional insight into HCPs

• "In developing habitat conservation plans, people applying for incidental take permits describe measures designed to minimize and mitigate the effects of their actions to ensure that species will be conserved and to contribute to their recovery. Habitat conservation plans are required to meet the permit issuance criteria:
  • (i) taking will be incidental;
  • (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking;
  • (iii) the applicant will ensure that adequate funding for the plan will be provided;
  • (iv) taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
  • (v) other measures, as required by the Secretary, will be met.
• "HCPs include:
  • an assessment of impacts likely to result from the proposed taking of one or more federally listed species.
  • measures that the permit applicant will undertake to monitor, minimize, and mitigate for such impacts, the funding available to implement such measures, and the procedures to deal with unforeseen or extraordinary circumstances.
  • alternative actions to the taking that the applicant analyzed, and the reasons why the applicant did not adopt such alternatives.
  • additional measures that the Fish and Wildlife Service may require.
• "HCPs are also required to comply with the Five Points Policy by including:
  1. biological goals and objectives, which define the expected biological outcome for each species covered by the HCP;
  2. adaptive management, which includes methods for addressing uncertainty and also monitoring and feedback to biological goals and objectives;
  3. monitoring for compliance, effectiveness, and effects;
  4. permit duration which is determined by the time-span of the project and designed to provide the time needed
  to achieve biological goals and address biological uncertainty; and
  5. public participation according to the National Environmental Policy Act.
• "The FWS provides “No Surprises” assurances to non-Federal landowners.  Essentially, State and private landowners are assured that if “unforeseen circumstances” arise, the FWS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permitholder. The government will honor these assurances as long as permitholders are implementing the terms and conditions of the HCPs, permits, and other associated documents in good faith. In effect, the government and permit-holders pledge to honor their conservation commitments.
• "Mitigation measures are actions that reduce or address potential adverse effects of a proposed activity on species included in an HCP. They should address specific conservation needs of the species and be manageable and enforceable. Mitigation measures may take many forms, including, but not limited to, payment into an established conservation fund or bank; preservation (via acquisition or conservation easement) of existing habitat; enhancement or restoration of degraded or a former habitat; establishment of buffer areas around existing habitats; modifications of land use practices, and restrictions on access. Which type of mitigation measure used for a specific HCP is determined on a case by case basis, and is based upon the needs of the species and type of impacts anticipated."

• Note that the federal statute (like the state zoning statutes) is carefully written to not violate the Constitutional prohibition against taking private property without compensation.

An alternative and more proactive approach is for FWS and private landowners to address ESA considerations before there is an issue.  The Enhancement of Survival Permit is intended to offer that alternative.  This permit is available to individuals who enter into a Safe Harbor Agreements (SHAs) which provides regulatory assurance that the FWS will not require any additional or different management activities as long as the participating landowner fulfills the agreement by contributing to the recovery of listed species on non-Federal lands.

An alternative to the SHA is the Candidate Conservation agreements:  "Candidate Conservation agreements (CCAs) are voluntary agreements between landowners and one or more other parties to reduce or remove threats to at-risk species. Parties to the CCA work with the FWS to design conservation measures and monitor the effectiveness of plan implementation."

Both SHA and CCA are intended to protect endangered species and assure participating private landowners that they will not be subjected to additional regulatory expectations in the future. A description of federal government efforts to provide incentives to preserve habitat of endangered species is available at For Landowners.

Example of the scope of the Endangered Species Act:

• North Dakota Endangered Species Protection Plan for Pesticides as part of the N.D. Dept. of Agriculture Endangered Species Protection
• "The United States Fish and Wildlife Service (USFWS) has listed seven species in North Dakota as threatened or endangered ... The species include three birds - piping plover (Charadrius melodus), least tern (Sterna antillarum) and whooping crane (Grus americana); two mammals - black-footed ferret (Mustela nigripes) and gray wolf (Canis lupus); one fish - pallid sturgeon (Scaphirhynchus albus); and one plant - western prairie-fringed orchid (Plantanthera praeclara)."

Carefully consider the impact the Endangered Species Act has on private property.

Wilderness Act

Source: Wilderness Act at 16 U.S.C. 1131 et. seq.

The United States federal government owns vast tracts of land, especially in the western mountain states.  These lands are often used by individuals and businesses for grazing, logging and mining.  The users pay a fee to access and use the land.  Only a small portion of federally-owned land cannot be used, such as those areas that are maintained as national parks.

U.S. Congress has declared its intent to preserve some federally-owned land in its natural, unaltered state, even if the targeted area is outside a park. The Wilderness Act was enacted by Congress as a declaration of how Congress expects federal agencies to manage federally-owned land.  And there is no question that Congress (as our federal leaders) has the authority to manage federally-owned land.

"In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as "wilderness areas", and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness; and no Federal lands shall be designated as "wilderness areas" except as provided for in this chapter or by a subsequent Act.

"A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value."

Source: 16 U.S.C. §1131

See excerpts from The Wilderness Society v. U.S. Fish and Wildlife Service, U.S. Court of Appeals, 9th Circuit, Filed December 30, 2003; Amended March 16, 2004.

The Wilderness Act provides a process by which Congress can declare federally-owned land as "off limits" to use.  For a list of Wilderness areas, visit http://www.wilderness.net/index.cfm (University of Montana).

What impact may the Wilderness Act have on federally owned grazing lands?

Wild and Scenic Rivers Act

Source:Wild and Scenic Rivers Act at 16 U.S.C. 1271 et. seq.

Many rivers in the United States have been dammed and thus are lakes rather than flowing water.  In recognition of the value of flowing water, Congress enacted the Wild and Scenic Rivers Act to preserve certain flowing rivers and their immediate natural environment.  Note however, that the Wild and Scenic Rivers Act differs from the Wilderness Act.  The Wild and Scenic Rivers Act can impact privately owned land that is adjacent to a protected river, whereas the Wilderness Act applies only to federally-owned land.  Accordingly, the Wild and Scenic Rivers Act (which restricts what development can occur on land adjacent to a river) raises the question of whether this federal law amounts to a "taking" of private property rights.

"It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.

"The purpose of this chapter is to implement the policy of this title by instituting a national wild and scenic rivers system, by designating the initial components of that system, and by prescribing the methods by which and standards according to which additional components may be added to the system from time to time."

Source 16 U.S.C. §§1271 and 1272; 36 C.F.R. Part 297

36 C.F.R. Sec. 297.3 Definitions ... Wild and scenic river means a river and the adjacent area within the boundaries of a component of the National Wild and Scenic Rivers System pursuant to section 3(a) or 2(a)(ii) of the Act.

16 U.S.C. §1274(b)"... boundaries shall include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river..."

16 U.S.C. §1277(a)(1) "The Secretary of the Interior and the Secretary of Agriculture are each authorized to acquire lands and interests in land within the authorized boundaries of any component of the national wild and scenic rivers system designated in section 1274 of this title, or hereafter designated for inclusion in the system by Act of Congress, which is administered by him, but he shall not acquire fee title to an average of more than 100 acres per mile on both sides of the river..."

What impact may the Wild and Scenic Rivers Act have on undeveloped rivers?

What impact does a Wild and Scenic River designation have on private property within its boundary?

Implementation of the Wild and Scenic Rivers Act often leads to the federal government purchasing privately-owned land within the designated "immediate environments".  This practice protects some of the land in the immediate environment (that is, the purchased land) and avoids the legal issue of a "taking" by inverse condemnation.

For a list of Wild & Scenic Rivers, visit http://www.rivers.gov/map.php (federal agencies).

.

Little Missouri State Scenic River Act (North Dakota law)

In a political move to retain control over the Little Missouri River in North Dakota, the state legislature enacted a statute intended to protect the natural state of the Little Missouri River.  The hope was that state protection would be viewed as adequate and thus persuade the federal government from asserting federal control over the River.

• "The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River commission." N.D.C.C. §61-29-02.

• "Channelization, reservoir construction, or diversion other than for agricultural or recreational purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri tributary streams are expressly prohibited. Flood control dikes may be constructed within the floodplain of the Little Missouri. Diking and riprapping for bank erosion control shall be permitted within the confines of the Little Missouri scenic river. The construction of impoundments for any purpose on the Little Missouri mainstream shall be prohibited. This chapter shall in no way affect or diminish the rights of owners of the land bordering the river to use the waters for domestic purposes, including livestock watering, or any other rights of riparian landowners." N.D.C.C. §61-29-06.

Does this state law provide the same protection for the Little Missouri River in North Dakota as a federal designation as a Wild and Scenic river? Has this state law eliminated the need for a federal designation of the Little Missouri River in North Dakota as a Wild and Scenic river?

Taking v. police power -- revisited -- When does a regulation become a taking?

At this point in our thought process, it may be helpful to again consider the "limit to government action."

It is well understood that government cannot "take" private property without compensating the owner. It also is well understood that a government "taking" does not occur only when the government seizes possession of the property; that is, the government may have "taken" private property even though the individual still possesses the property. The easiest example of a taking even though the ownership of the property has not changed is a regulation that prohibits a landowner from using the property for any economic purpose.

• This notion of taking is consistent with the idea that property is not the item, but the rights in the item, and if too many rights are taken away (even though the "sticks in the bundle" that represent ownership are still retained by the individual), there has been a taking.

• Thus the question becomes -- at what point does a regulation cease to be an "exercise of police power" (for which the property owner is not compensated) and become a "taking" that entitles to property owner to be compensated?
• Remember, an alternative to compensating the property owner for "taken" property is to remove the regulation and allow the owner to use the property as desired.

Can I construct a water well on my land? Can I construct a dam on my land?

The general rule is that water belongs to the state, even water located on or below private land. Likewise, in most states, the use of water is regulated according to statutory or common law.  For example, in North Dakota and other states in the western United States, a person needs to comply with the state's permitting process to acquire the right to use water. Also in these western states, the person who is first to use the water has the best legal right to continue using the water (this legal concept is referred to as the doctrine of prior appropriation). Persons who begin using the water at a later time are generally required to stop their use of the water if there is shortage.

• N.D.C.C. §61-04-02. "Any person, before commencing any construction for the purpose of appropriating waters of the state or before taking waters of the state from any constructed works, shall first secure a water permit from the state engineer unless such construction or taking from such constructed works is for domestic or livestock purposes or for fish, wildlife, and other recreational uses or unless otherwise provided by law. However, immediately upon completing any constructed works for domestic or livestock purposes or for fish, wildlife, and other recreational uses the water user shall notify the state engineer of the location and acre-feet [1233.48 cubic meters] capacity of such constructed works, dams, or dugouts.
• "Regardless of proposed use, however, all water users shall secure a water permit prior to constructing an impoundment capable of retaining more than twelve and one-half acre-feet [15418.52 cubic meters] of water or the construction of a well from which more than twelve and one-half acre-feet [15418.52 cubic meters] of water per year will be appropriated. "In those cases where a permit is not required of a landowner or the landowner's lessee to appropriate less than twelve and one-half acre-feet [15418.52 cubic meters] of water from any source for domestic or livestock purposes or for fish, wildlife, and other recreational uses, those appropriators may apply for water permits in order to clearly establish a priority date; the state engineer may waive any fee or hearing for such applications. An applicant for a water permit to irrigate need not be the owner of the land to be irrigated."

Bottom line -- even though I own the land, my use of the water that is on or below the land is subject to state regulation.

A question that might arise is the difference between domestic use (which includes watering a garden) and irrigation (watering a BIG garden).  North Dakota statutory law answers this question, for example, by defining irrigation as "... the use of water for application to more than five acres of land to stimulate the growth of agricultural crops, including gardens, orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as athletic fields, golf courses, parks, and similar types of areas."  N.D.C.C. §61-04-01.1(6).

The State Water Commission (SWC) is the agency of North Dakota government with the responsibility of administering water permits.  For more information, see http://www.swc.nd.gov/4dlink9/4dcgi/GetSubCategoryRecord/Permits%20and%20Applications/Water%20Permits

• Also see SWC regulations at North Dakota Administrative Code Art. 89-03

Most states in the eastern portion of the United States follow the doctrine of riparian rights, that is, "I can make a reasonable use of water that is adjacent to my land." However as water issues arise more often in these states, some states are modifying their law by incorporating aspects of prior appropriation doctrine and permitting systems.

Are landowners required to conserve our natural resources, such as our soil?

Soil conservation laws since the 1930s have been voluntary; similarly, the soil bank program of the 1950s was voluntary.

For example, Soil Conservation Act (1936)

• To assist in erosion control and enhance the productivity of farm land
• 16 U.S.C. §2001 -- Congressional findings. The Congress finds that: "(1) There is a growing demand on the soil, water, and related resources of the Nation to meet present and future needs."(2) The Congress, in its concern for sustained use of the resource base, [1] of the United States, has ensured that the Department of Agriculture possesses information, technical expertise, and a delivery system for providing assistance to land users with respect to conservation and use of soils; plants; woodlands; watershed protection and flood prevention; the conservation, development, utilization, and disposal of water; animal husbandry; fish and wildlife management; recreation; community development; and related resource uses."(3) Resource appraisal is basic to effective soil and water conservation. Since individual and governmental decisions concerning soil and water resources often transcend administrative boundaries and affect other programs and decisions, a coordinated appraisal and program framework are essential. Now add 'sodbuster,' conservation compliance, and conservation reserve program - all are voluntary programs but the associated incentives are so important to producers that they often feel they have no alternative but to participate in the programs."

Soil conservation is NOT mandatory -- perhaps for both political and legal (constitutional) reasons.  But Congress has defined incentives such that landowners and farm operators feel they have no choice but to participate in soil conversation practices.  Several such programs are listed here.

Sodbuster (highly erodible land) -- does not prohibit new cultivation of highly erodible grasslands; but the law renders a farmer ineligible for benefits of federal farm programs if grassland is converted to cropland; 16 U.S.C. §3811.

Conservation Compliance -- does not require farmers to develop a plan for soil and water conservation; but it declares a farmer ineligible for benefits of federal farm program if a plan for managing highly erodible lands is not developed and implemented; 16 U.S.C. §3812(a)(2).

• Also see 7 C.F.R. Part 12 for USDA regulations on conservation of highly erodible land.

Conservation Reserve Program (CRP) -- pays landowners to plant highly erodible cropland to grass or trees (similar to Soil Bank program used in the late 1950s and 1960s); 16 U.S.C. §3831.

• Also see Conservation Programs of the NRCS (USDA).

• Note: As CRP contracts expire and the land is again cropped, these will be considered highly erodible land.  The producer will need a conservation compliance plan to retain eligibility for the federal government farm programs when producing a crop on these lands.

Again, benefits of federal government farm programs are unavailable to producers if the operator is not in compliance with these programs.

Several Thought Questions

• What incentives to engage in soil conservation practices would be available if the federal government farm program is eliminated? Do environmentalists and producers each have reasons for continuing the farm program?
• Is there an alternative to voluntary soil conservation programs, such as mandating conservation practices without an incentive? Look at Iowa's statute.
• Is there a legal reason why Congress might not mandate soil conservation practices? Would mandating soil conservation practices be a "proper exercise of police power"?

Bottom line -- generally landowners are NOT required to practice soil conservation, but incentives provided by federal programs are so extensive that farm operators feel they have no alternative but to practice soil conservation.

Summary of Key Points

• Federal, state and local regulation of land-use to promote management of natural resources must fit within the scope of "a proper exercise of police power'" otherwise, the regulation will be considered a "taking."
• Common law tort restrictions have been largely replaced by local government zoning and state and federal regulatory schemes.
• Federal laws intended to preserve natural resources can impact the use of land; such legislation, for example, includes the Endangered Species Act, Wilderness Act and Wild and Scenic Rivers Act.
• Allocation of water is primarily a state regulatory matter.
• Soil conservation is primarily a voluntary activity but landowners are influenced by incentive programs.

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The last topics for this course are waste disposal, wetlands and pesticide application.