Transcript Natural Resources Law

Review: Resolving Complex Resource
Problems
• ANWR example
– Uncertainty
– Federalism; nationalism
• Who should decide? Aren’t they “national”
resources? McCulloch v. Maryland
– Whose interests should be considered and
what weight should they be given?
– What is the risk of “rent-seeking”?
Review: Resource Management Tools
• Prescriptive regulations
– “Command and control”
• Property rights
– Leases, fee estates, easements
• Market Instruments
– Payments and penalties
– Tradable permits
• Public Disclosure
– Example of EPCRTKA
Q & D: The Red Snapper Fishery
• If over-fishing is occurring, how would you
choose to address the problem?
• Compare
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–
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Prescriptive regulation
Property rights
Market instruments (cap and trade; fines; taxes)
Public disclosure
• Any difference in approach to commercial and
recreational fisherman?
Consider the New Zealand Solution
• Individual Transferable Quotas (ITQ)
– First proposed for New Zealand fisheries in 1983 and
finally introduced in 1986
– These quotas are permanent but restricted to a given
species and location
– Together the ITQs add up to a Total Allowable Catch
(TAC) which ensures that only a sustainable number
of fish are caught
• How might New Zealand address aboriginal
rights under this system?
• How should they address recreational fishing
rights?
Private Property and Public Rights
• What does Professor Cole mean by “private”
property?
– “not … allodial [unfettered] property devoid of public
rights, but property nominally owned by private
individuals, subject to various group or public
interests.”
• What relevance does Professor Cole’s view of
private property have to the study of natural
resources law?
– Consider the recent debate over ownership of the
littoral (lakeside) land
– What does Cole’s view suggest about “takings” law
Should We Privatize Public
Lands?
• Costs of managing our public lands far
exceed revenues…
– Is this a sufficient reason in itself to support
the sale of public lands?
– What values are not captured by these
figures?
– Would privatizing favor particular uses?
– Consider Anderson’s proposal to issue every
citizen a share certificate. Would this avoid
the advantage that industry might have in a
pure auction?
Historical and Constitutional Geography
What was driving expansion of U.S. territory?
• Manifest destiny
– Popularized and aggressively pursued by Democratic
President James K. Polk
– Polk only served one term (1845-1849). Although
politically popular he chose not to seek reelection in 1848,
and he died just 3 months after leaving office at the age of
only 53
– Although not well-known, historians generally regard Polk
as one of our better presidents
• Federal policy of promoting western expansion and
settlement was made possible by the disposition of public
lands and resources.
– These “lords of yesterday,” who carried out the expansion,
retain substantial power today
How did the United States evolve
from original 13 colonies?
• British Proclamation of 1763: Common Lands Policy
– No settlement west of Appalachian mountains
• Northwest Ordinance of 1787
– Following independence from England, provided the basis upon
which all future states would enter the Union
– The Northwest Territories would eventually become Ohio, Indiana,
Illinois, Michigan, Wisconsin and Minnesota
– States would enter on “equal footing;” revenue from sale of a portion
of each township would support schools; neither slavery nor
involuntary servitude were allowed; and finally, a good faith effort
would be made to respect the Indians in the territory.
• By 1802 all seven of the original colonies that held western
territory had ceded their lands to the federal government
• In 1803 Louisiana territory was purchased from France (about
523 million acres -- doubled the size of U.S.). The
Transcontinental (Adams-Onis) Treaty of 1819 with Spain fixed
borders between Louisiana Territory and Mexico
• In 1819 treaty, Spain ceded Florida to U.S.
• Texas gained independence from Mexico in 1836, and was
admitted to Union in 1845 through annexation (Texas
retained its public lands.)
•
In the Treaty of Oregon in 1846, after 28 years of peaceful
“joint occupation”, Britain relinquished its claims to the
Oregon territory south of the 49th parallel.
• Treaty of Guadalupe Hidalgo of 1848 (Mexican Cession)
– Mexico ceded California, Nevada, Utah, most of Arizona, parts of
Colorado, New Mexico, and Wyoming to U.S.
• 1850 purchase of 79 million acres from Texas
– Parts of Colorado, New Mexico, Oklahoma, and Wyoming
• Gadsden Purchase Treaty of 1853
– 19 millions acres south of Gila River includes parts of southern Arizona
and New Mexico
• Alaskan Purchase of 1867 by Treaty with Russia
• Annexation of Hawaii in 1898
Acquisition of Lands from the Indians
• U.S. Const. art. 1, § 8, cl.3: Gives Congress the power to
regulate commerce with the Indian Tribes
• Johnson v. M’Intosh
– Johnson claims title through tribal grants; M’Intosh by patent from U.S.
(What is a patent?)
– Property rights of the original habitats not “disregarded” but “impaired”
• They had rights of possession and use, but not disposal (But they
were entitled to protection)
• Federal government had the power to extinguish their title
– Discovery gave title to those who made it
– Not for U.S. courts to question validity of title acquired from Britain
(Why not?)
• What is the nature of aboriginal title?
– Can be extinguished by U.S. without compensation
– Tribe must show actual, continuous, and exclusive possession
Treatment of Native Americans
• Cohen suggests that we consider not in today’s
context but in its historic context
• Rasband describes a series of approaches to
dealing with Indians
– Federal consent and control (Trade and Intercourse Acts)
– Removal policy (“Trail of Tears”)
• http://www.rosecity.net/tears/trail/map.html
– Reservation policy
– Assimilation policy (Allotment Acts)
– Between 1950’s and today, various shifts between selfdetermination and assimilation (Self-determination
seems well-established today.)
Federal Power Over Western Territories
• Equal Footing Doctrine
– Northwest Ordinance assured new states entered
Union on equal footing
– Existing colonies wanted federal property in the
territories
• Pollard v. Hagan
– Upheld state’s title to land under navigable waters
– Dictum went much farther
• Equal footing compelled by constitution
• Federal government had no authority to keep and
regulate public lands
• Enclave clause established limits of federal power
over public land
– Pollard dictum has never been followed
– What would the national landscape look like if Pollard
dictum had prevailed?
Lands Under Navigable
Waters
• Martin v. Waddell
– Held by the States in trust for the people
• State vs. federal rights over navigable water
– Strong presumption that lands under navigable
waters are held by the State (Utah case)
– But these rights can be defeated by clear federal
grant (Couer d’Alene) or reservation (ANWR) of
such rights prior to Statehood
Q & D: Navigable Waters
• Navigability in fact test from The Daniel Ball
– “Those rivers must be regarded as public navigable
rivers in law which are navigable in fact. And they are
navigable in fact when they are used, or are susceptible
of being used, in their ordinary condition, as highways
for commerce, over which trade and travel are or may
be conducted in the customary modes of trade and
travel on water. And they constitute navigable waters of
the United States within the meaning of the acts of
Congress, in contradistinction from the navigable waters
of the States, when they form in their ordinary condition
by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be
carried on with other States or foreign countries in the
customary modes in which such commerce is conducted
by water.”
Review
• Manifest destiny and its implications for disposition
of public lands
• Treatment of American Indians and its relevance to
resource law
– “Discovery” doctrine: The right to extinguish Indian title
– Aboriginal title: A possessory right only
– Evolution of Indian policy
• Equal footing doctrine
– Northwest Ordinance of 1787
– Pollard v. Hagan
– Ownership of navigable waters bed below mean high tide
• Martin v. Waddell illustrative
Q & D 4: The Scope of Federal Power
• Does it matter that the federal government owns
83% of Nevada but only 0.3% of New York? Are
these states on “equal footing”?
• General Condemnation Act of 1888:
– Authorizes condemnation whenever “necessary or
advantageous to the Government….”
– No need to use the Enclave Clause
• U.S. v. Gettysburg Elec. R.R.
– Upholds condemnation of land for inclusion in a public
park
The Public Trust Doctrine
• Certain resources that are historically owned
and controlled by the States are so closely tied
to public rights and interests that they are
incapable of alienation
• The doctrine first arose in the context of
navigable waters
– Recall the Pollard and Martin decisions
• What is the nature of the trust? What is its
purpose?
Illinois Central RR. v. Illinois
Map of Chicago Harbor
http://www.lrc.usace.army.mil/co-o/Chgo_Hbr02.htm
Illinois Central R.R. v. Illinois
• Title to land under navigable waters is held in trust for
people
• Grants that promote public interest or that do not cause
substantial impairment of those interests are lawful
• Grant to railroad was “revocable”
– Why wasn’t it void outright?
• Consider Court’s references to Martin v. Waddell and
Arnold v. Mundy
– What does this tell you about the scope of the public
trust “servitude”?
• Is the public trust doctrine federal or state law?
Constitutional or common law? Why does it matter?
Q & D: Public Trust
• Suppose Illinois Central had been filed by private
citizens rather than the State. What result?
• Consider Arizona Center for the Public Interest v.
Hassell
– Struck down Arizona law granting title to beds
of navigable streams to adjacent owners.
• Consider the potential scope of the public
doctrine to other natural resources
– Should it apply to the waters themselves;
actions that could impact navigable waters;
public recreational rights; public park lands;
wildlife
Expanding the Scope of the Trust
• Why might the potential expansion of the
doctrine be controversial?
• What concerns does the public trust doctrine
raise with respect to…
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–
–
–
–
Separation of powers?
Good governance?
Governmental accountability?
Respect for property rights?
Procedural fairness?
• How might a supporter of the doctrine respond to
these concerns?
Lake Erie Shore Controversy
• Ohio H.B. 218
– Would grant to Lake Erie shore owners title to shoreline
to water’s edge (Passed House; stalled in Senate)
– Many landowners claim they have deeds supporting such
rights
• State v. Cleveland & Pittsburgh Railroad. Co., 94 Ohio St.
61 (1916)
– Ohio Supreme Court first recognized that the scope of
public trust property extends to the high water mark
– “The state as trustee for the public cannot, by
acquiescence abandon the trust property or enable a
diversion of it to private ends different from the object for
which the trust was created.”
– If the bill passes it will likely be challenged in court. What
result would you expect?
Problem Exercise: Indian Fishing Rights
• Indian Treaty Rights
– “The right of taking fish, at all usual and accustomed grounds and
stations, is further secured to said Indians, in common with all citizens
of the Territory ….; Provided, however, That they shall not take shell fish
from any beds staked or cultivated by citizens….”
– U.S. v. Washington and progeny
• Treaty Clause gave Tribes rights to 50% of fish as necessary to
secure a “moderate living.”
– Consider –
•
•
•
•
Discovery doctrine
American policy of fair dealing with Tribes
Equal footing doctrine
Public trust doctrine
– What impact on shell fishing rights?
United States v. Washington, 157 F.3d
630 (9th Cir. 1998) (Shellfish Case)
• The Shellfish proviso prohibited Tribes from
harvesting shellfish on most commercial growers'
property
• Court imposed time, place, and manner
restrictions on the Tribes' ability to harvest from
privately owned land
• Tribes shellfish rights were limited by “moderate living”
standard
• Special masters hear particular disputes
– Court rejected lower court decision to allow three of four special
masters to be designated by non-Tribal parties
Public Land Policy
• Disposition period
– 1776-1891
• Reservation period (Teddy Roosevelt and
Progressive era)
– 1892-1905
• Management period
– 1906-present
• NOTE: There is considerable overlap among
the three periods
Chain of Title
• A full title search outside the original 13
colonies and a few other early states
(Tennessee, West Virginia, Kentucky) traces
title back to the patent from the United States
• A “patent” is the original grant of title from the
United States
• Jeffersonian Survey System had important
influence on land use and management
– First used in Ohio
Jeffersonian Survey System
• Townships are numbered from baselines and meridians.
– E.g., T5N, R6W, 6th P.M.
• Under the Land Ordinance of 1796, all future public land
surveys established 6 mile square townships, composed
of 36 one mile square sections. But the Land Ordinance
also created the Congressional Military Tract in the
heart of Ohio which used 5 mile square townships,
• Sections described in quarters and halves
• E.g., E½SE¼, § 13, T5N, R6W, 6th P.M.
– States granted section 16 (and some, 2, 32, and 36) to
support public schools
Review
• Public trust doctrine
– The principle that certain public assets are so
important to the public good that they are
“incapable of alienation.”
– Historically limited to land under navigable waters,
but arguably includes the water itself, and in theory
could be extended to encompass other important
public assets
• Disposition of public land
– Evolved from disposition to reservation to
management
• Review of Jeffersonian Survey System
Township and Range Map
http://www.ca.blm.gov/pa/cadastral/meridian.html
Metes and Bounds Descriptions
• A metes and bounds description is a legal
description of a parcel of land that begins at a
well-marked point and follows the boundaries,
using directions and distances around the
tract, back to the place of beginning
• The word “metes” refers to directions and
distances, and “bounds” refers to monuments,
both physical and legal.
• Here’s an example:
– http://www.firstam.com/faf/dimensions/metes.html
BLM Master Title Plat (Az.)
http://azwww.az.blm.gov/cadastral/java_frm.cfm
Land Grants to the States
• School sections to the states
– Section 16 until 1850
– Sections 16 and 36 until 1894
– Sections 2, 16, 32, and 36 after 1894
• Additional grants for other purposes
– See discussion of Arizona Enabling Act, p. 118
• Morrill Act of 1862 gave every state 30,000 acres
of federal land to establish agriculture and
mechanical colleges. These A & M schools are
often referred to as the “land grant” colleges.
Many have evolved into leading universities.
Land Grants to Settlers
• Initial efforts to sell land to settlers were not very
successful.
– Settlers wanted the land for free and if the federal
government was not inclined to give they would just squat on
the land
– Preemption Act of 1841 allowed squatters to purchase lands
they had settled for $1.25/acre.
• Homestead Act of 1862 allowed citizens to enter 160
acres of land and receive the land for free when they
“proved up”
– Could purchase the land for $1.25 per acre after 6 months
instead of proving up
– Outside the Upper Midwest, implementation of the law was
marred by fraud and abuse, in many cases to benefit large
landholders
• What was motivating this generosity by the federal
government? Why did they tolerate abuse?
Land Grants to Settlers (continued)
• Enlarged Homestead Act of 1909 allowed entry on 320
acres
• Stockraising Homestead Act of 1916 on 640 acres
– Federal government retained the minerals
• Timber Culture Act
– 160 acres of timber lands
• Desert Lands Act of 1877
– 640 acres of desert land had to be irrigated
• Timber and Stone Act of 1878
• General Mining Law of 1872
Land Grants to Railroads
• A classic example of public choice theory
– Railroads initially given free rights-of way; then six miles
on either side of right-of-way; then 10; then 20; one
railroad got 40!
– Was it truly necessary to give away all of this land to
promote the railroad?
– Railroads were given land in excess of the size of
Montana!
– What were the policy reasons for this approach? What is
its legacy?
• RR land grants covered 10% of continental U.S. (Only
about ¾ were actually transferred to RR)
• Consider influence as a result of checkerboard
Railroad Land Grants
http://memory.loc.gov/award/mhsdalad/120000//120033v.jpg
Checkerboard Pattern: (Depicts UP land
ownership just north of Laramie, Wyoming
http://www.coxrail.com/land-grants.htm
The Land Grant Era
• Classic examples of public choice theory
– Railroads, private citizens and even
perhaps with state land grants
– But as Carstensen suggests, perhaps it was
all inevitable – even necessary – if the
larger goals of establishing a nation on the
scale of the U.S. was to be achieved.
Q & D 1: The Lords of Yesterday
• Cattle barons, mining companies,
timber companies used the land grant
laws to establish their hold on the
western landscape
• Despite changing times and changing
values, it has been difficult to reorient
public land policy. Why?
Q & D 2: In Lieu Selections
• States were allowed to select lands in lieu
of school lands that were not transferred
because of prior reservations or sale
– Must be roughly equal value
• What if the purposes for which lands
granted were not being well-served?
• Note the problems posed by managing
isolated school sections
– What is the solution?
Retention of the Public Lands
• Early reservations
– National Parks
– National monuments
• The Antiquities Act of 1906
• Forest reserves
– General Revision Act of 1891
– Forest Management Act (Organic Act) of 1897
– T. Roosevelt and G. Pinchot
• Wildlife Refuges
United States v. Midwest Oil
• President Taft withdrew more than 3 million acres of lands
in Wyoming and California known to be valuable for oil
– Lands withdrawn “in aid of legislation”
– What did this mean? Isn’t the order in direct
contravention of the disposition laws?
– Should he have claimed “national security”?
• The Constitution provides that –
– “The Executive power shall be vested in the
President…” Art. II, §1, cl.1.
but …
– “The Congress shall have power to dispose of and
make all needful rules and regulations respecting the
territory or other property belonging to the United
States…” Art. IV, §3, cl. 2.
Midwest Oil
• Court notes that Presidents had issued hundreds
of executive orders over the years creating and
modifying Indian reservations, military
reservations, and bird reserves
– “Nothing was more natural than to retain what the
Government already owned.”
– “Government is a practical affair”
– Long-continued practice acquiesced in by Congress
• Consistent with the Constitution?
– Note the dissent; suggests that other reservations were
made for purposes either authorized by Congress or
where grants were made for purposes that could not be
ascertained
Q & D: Reservations vs. Withdrawals
• Reservations: Lands retained for particular
purpose—e.g. forest reserves; Indian
reserves; bird reserves
• Withdrawals: Orders that make certain public
land laws inoperable on the withdrawn lands
– Lands might be withdrawn, for example, from
location under the mining laws, or entry under the
homestead laws
Q & D: Power to Withdraw
• What was the problem presented by the Oil
Placer Act?
• What is the scope of executive power approved
under Midwest Oil?
• To what extent should congressional
acquiescence be used to construe executive
power?
• What is different about a presidential decision to
open ANWR (in violation of ANILCA) from the
presidential action in Midwest Oil?
Q & D: Acquiescence and The Antiquities Act
• Is the best argument for the Midwest Oil decision
congressional acquiescence?
• Consider the Antiquities Act
– Allows president to reserve “historic landmarks, historic
and prehistoric structures, and other objects of historic
or scientific interest that are situated upon [public
lands]….”
– How broad is the President’s authority here?
• Note that FLPMA repealed virtually every withdrawal
power granted the president over the years, including the
implied power of Midwest Oil, with one notable exception
– the Antiquities Act
The Decision to Retain the
“Public Domain”
• TGA of 1934
– “In order to promote the highest and best use of
the public lands pending its final disposition, the
Secretary of the Interior is authorized … to
establish grazing districts….”
• FLPMA of 1976
– Establishes general policy that the “public lands
be retained in Federal ownership…”
Public Lands
http://www.colorado.edu/geography/projects_research/range/brief4_history.html
Legacy of Public Lands Policy
• What would you do differently?
• Consider
– Homesteading
– State land grants
– Railroad grants
– Mining and timber policy
Q & D: The Money Problem
• Federal government makes “Payment In Lieu
of Taxes” (PILT) payments to states
• Also gives states 50% of mineral royalties
(Alaska receives 90%)
• Note that despite their complaining, Western
states almost always receive more revenue
from the federal government than they pay in
taxes
Q & D: The Alaska Story
• Generous terms for statehood
– 103 million acres granted to the State
– Problems of native claims
• ANCSA
– Nearly one billion dollars in grants and lease revenues to
Alaska natives,
– 40 million acres of land
– Feds could withdraw 80 million acres temporarily for
consideration by Congress as parks, etc.
• (d)(2) lands
• Congress failed to reach consensus; withdrawals were
about to expire when Carter used FLPMA’s emergency
withdrawal power on 111 million acres AND designated
56 million acres as national monuments
• ANILCA (1980): Sets aside about 100 million acres for parks,
refuges, etc.
Federal Power Over Natural Resources
• Constitutional Powers
– Public lands: Property Clause
– All lands:
• Commerce Clause
• Treaty Clause
• War Powers Clause
• Spending power
• Limits on federal power
– First Amendment
– Fifth Amendment, Takings Clause
– Tenth Amendment
Kleppe v. New Mexico
• N.M. removed horse from public lands that were
allegedly causing damage to a private livestock operation
Claimed WFRHBA unconstitutional usurpation of state
power to manage wildlife
– Property Clause:
• “The Congress shall have power to dispose of and
make all needful rules and regulations respecting
the territory or other property belonging to the
United States…” Art. IV, §3, cl. 2.
• Note also, legislative jurisdiction provisions in the
constitution (footnote 10)
Kleppe
•
State claims
1. Federal power limited to protecting land (Hunt; Camfield)
1. Court finds that cases doesn’t support the conclusion
2. Federal government has only rights of proprietor
1. Court finds that “the power over public lands thus
entrusted to Congress is without limitations.”
Congress has power as both proprietor and legislature
2. State confuses “derivative legislative power” with
power under Property Clause. (What are these
derivative powers?)
3. State control of wildlife (Note that Geer was overruled
after this case)
1. Court finds that state’s authority is limited by federal
constitutional authority
Q & D: Legislative Jurisdiction
• What is the division of power between New
Mexico and the United States after the Kleppe
decision?
– Who has jurisdiction over a car accident that occurs
on public lands? A murder?
– Who has jurisdiction over float trips on a river that
runs through the federal lands? (Does it matter if the
river is navigable?)
– Who has jurisdiction to issue hunting and fishing
permits?
Q & D: Dormant Property Clause?
• Oaechevarria held that State police powers
extend at least where no conflicting federal
law.
• Are there some types of state police powers
that are so offensive to federal property rights
that they might be limited by a dormant
property clause theory?
• Unlikely to be tested because NFMA and
FLPMA give agencies broad general powers
Problem Exercise: Sagebrush
Rebellion/County Supremacy Movements
• Pollard v. Hagan analysis
– Equal footing doctrine: New states enter
the Union on equal footing
• Kleppe v. New Mexico analysis
– Plenary federal power over states
Minnesota v. Block
• Federal lands comprise 90% of BWCAW,
but state owns 121,000 acres of land and
all the land under the navigable waters
• What is the scope of federal authority to
restrict motor boat use on waters within the
boundaries of the BWCAW?
• Court suggests that federal government has
broad power to regulate any activities that
impact federal land
Q & D: Property Clause
• Note 2: Consider Professor Appel’s
hypos. Under the guise of the Property
Clause could Congress…
– Authorize gaming on national forest lands in
states where gaming is prohibited?
– Prohibit guns within 1000’ of a federal
property?
– Regulate private air pollution sources that
might impact public parks?
Geer v. Connecticut
(overturned in 1979)
• Does the State have the power to prohibit
the sale of a game bird out-of-state?
• Court holds that they do –
– Power to take animals ferae naturae passed to
the states (under equal footing doctrine?)
– State owns wildlife as a trustee for all of its
people
• State law prohibiting out of state sale benefits the
people of the State
• State is merely regulating internal commerce
Geer Considered
• Can you reconcile Geer with dormant commerce
clause cases?
• Who owns the wildlife under Geer –
– In Connecticut? (equal footing?)
– In territories?
– On public lands?
• Is wildlife a public trust resource?
– After Geer is overruled, does it remain a trust resource?
• The Abby Dodge holds that commerce clause
power does not extend to state wildlife
– Is the Abby Dodge still good law? (never overruled)
Treaty Power
• Missouri v. Holland
– 10th Amendment
• “The powers not delegated to the United States by the
constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”
– Treaty power: Art. II, § 2, cl. 2
• [The President] shall have the power, by and with the
advice and consent of the Senate to make treaties
– Does the 10th amendment limit the president’s power to
make treaties? What is Missouri’s argument?
– Who decides whether national interests are at stake?
• What is the potential of the treaty power?
– Consider the Australian experience
Commerce Clause
• Consider recent court cases (Lopez and Morrison)
• Gibbs v. Babbitt
– Reintroduction of red wolf in North Carolina
• Challenge to “anti-taking” rules
– Lopez recognizes Congress’ power to regulate –
• Channels of interstate commerce
• Instrumentalities of or things in interstate commerce
• Activities that when viewed in aggregation have a substantial
relation to interstate commerce
– Courts finds authority under this third prong
• Wolves have significant impact on tourism
• Scientific research is commerce
• Potential for future trading in pelts
• Takings restrictions impact commerce, and thus qualify even
though their impact is to limit commerce – negative impact
Gibbs v. Babbitt
• Luttig dissent
– Rule implicates a handful of animals in one small part
of one state
– Studies supporting majority position are not compelling
• Could this rule be sustained under the treaty power?
– Convention on Biological Diversity (signed, 1993; never
ratified)
– Convention on International Trade in Endangered
Species (CITES): Applies only to trade in species and
species parts
• How about the Property Clause?
– The recovery area includes the wildlife refuge
Q & D: SWANCC case
• Issuance of Section 404 (CWA) permits
for isolated wetlands
– Courts construed CWA to avoid the
“significant constitutional and federalism
questions.”
– Does migratory bird rule violate the
Commerce Clause?
– Could it be sustained on other authority?
The Takings Clause and Natural
Resources
• 5th Amendment
– “… nor shall private property be taken for public
use without just compensation”
• Penn Coal:
– Regulations that go “too far” may constitute a
taking
• Penn Central RR
– Regulations that interfere with distinct, investmentbacked expectations may constitute a taking
Lucas v. South Carolina Coastal Council
“[F]or what is the land but the profits thereof[?]” 1 E. Coke,
Institutes § 1 (1st Am. ed. 1812). (Compare Leopold)
• Lucas owned beachfront property
– State rule barred construction of permanent structures on
two parcels owned by Lucas
– State court found that this rendered the property valueless
(True?)
• “Categorical treatment” reserved for –
– physical appropriations; and
– total regulatory takings
• Majority rejects noxious use analysis in favor of nuisance
analysis
– Total taking requires compensation unless state rule is
abating a nuisance
Categorical Regulatory Takings Test
• Does the regulation deprive the owner of all
economically beneficial use of the property?
– How do you define the “denominator”?
– Is it conceivable that the landowner in Lucas had
lost all economic value? (Recall that he was
prohibited from building a permanent structure)
• If so, does the regulation proscribe a use that would be
deemed a nuisance under background principles of the
State’s property laws?
– See note 15 from the dissent. Can you make an
argument that a permanent structure on Lucas’ land
constitutes a nuisance?
Q & D: Lucas
• First English Evangelical Lutheran Church
– Requires compensation for “temporary taking”
• Tahoe-Sierra Preservation Council
– Moratorium on permits was not a “temporary taking.”
Court suggests that “the familiar Penn Central
approach” should be used to adjudge such delays.
What is this approach?
• Suppose that USFWS requires farmers to give up
water right during one irrigation season to protect
a listed species. Is this a temporary taking?
– Apply Penn Central!
Q & D: Lucas
• Suppose Lucas had purchased lots after
Beachfront Mgt Act was passed
– Palazzolo v. Rhode Island: Timing of the acquisition
is one factor to consider under Penn Central.
(Won’t it be pretty compelling?)
• The exaction cases (Nollan & Dolan)
– These are really substantive due process cases,
although the Court treats them and they are almost
always described as takings cases
Problem Exercise
• Loveladies Harbor
– Owner of 250 parcel develops 199 acres
– wants to develop remaining 51 acres
– Reaches agreement with New Jersey to develop
only 12.5 acres
– Applies for CWA § 404 permit
• Corps denies permit with NJ’s support
• Categorical taking?
– If so, analyze
– If not, analyze
Bear Lodge Multiple Use Association
v. Babbitt
• Voluntary climbing ban during June on Devil’s
Tower
• Does it violate the Establishment Clause of the
First Amendment?
– Does it have a non-secular purpose
– Is the primary purpose to advance religion
– Does it foster excessive religious entanglement?
• Note that court had struck down mandatory
ban on Establishment Clause grounds