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Conservation of our natural resources of soil, water and air has been addressed by our laws for more than 70 years; environmental concerns have been the focus of attention for approximately 40 years.  These efforts have culminated with laws that often impact the use of our natural resources, including privately-owned resources, such as our land.  This web page introduces some legal limitations on how land and water can be used.

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."
  • 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).
    • 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 was a nuisance.
    • A secondary impact of preventing a nuisance is the broader implications for air and water quality, and the use of land.
    • 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.
  • Example:  "Each coterminous owner is entitled to the lateral and adjacent support which that owner's land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction on using ordinary care and skill, taking precautions to sustain the land of the other, and giving previous reasonable notice to the other of the intention to make such excavations. " N.D.C.C. §47-01-18.
    • Bottom line -- a landowner cannot dig a hole so large or so close to the property line that it will cause your neighbor's land to slide into the opening.

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. 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.

Zoning by local government

"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 location 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 urgings 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?

"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).

"For purposes of  [N.D.C.C. §11-33-02], "concentrated feeding operation" means any livestock feeding, handling, or holding operation, or feed yard, where animals are concentrated in an area that is not normally used for pasture or for growing crops and in which animal wastes may accumulate, or in an area where the space per animal unit is less than six hundred square feet [55.74 square meters]. The term does not include normal wintering operations for cattle. For purposes of this section, "livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, and fur animals raised for their pelts." N.D.C.C. §11-33-02(4).

"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).

• 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 US 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.

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.

Endangered Species

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.

• "The purposes of [the endangered species act] 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.

The Endangered Species Act is primarily implemented by:

• U.S. Fish & Wildlife Service
• Environmental Protection Agency

Regulations on declaring a species as endangered or threatened

• 50 C.F.R. §17.11 and §17.12.

Destroying habitat is a taking of an endangered species even if the habitat is located on private land.

• Overview of relevant statutes, regulations, and court case

Example of the scope of the Endangered Species Act --

• North Dakota Endangered Species Pesticide Management Program

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

Likewise, "[p]rivate 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. "
• This page also describes the "No Surprises" Rule for private landowners.
• 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.

Description of federal government efforts to provide incentives to preserve habitat of endangered species.

• Private Landowners, States, and the Endangered Species Act

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

Wilderness Act

U.S. Congress has declared its intent to preserve some federally-owned land in its nature, unaltered state.

"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 USC §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.

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

 Wild and Scenic Rivers Act

"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 USC §§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 USC §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..."

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?

Little Missouri State Scenic River Act (North Dakota law)

"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.

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 we 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 USC §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."

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 USC §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; 16 USC §3812.

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 USC §3831.

Also see Conservation Programs of the NRCS (USDA).

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

• What incentives will 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, such as mandating conservation practices without an incentive? Look at Iowa's statute.

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.

Last updated July 18, 2008

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