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Introduction
“[E]nvironmental provisions almost always limit someone’s property
rights in one or another way. Therefore the tension between individual and
public (which are most often declared as the reason of environmental
protection) interests arise” (Puraite 2012, 665-666). Governmental entities,
ranging from the Environmental Protection Agency (EPA) to local zoning
boards, are tasked with managing and conserving our natural resources and
protecting these public interests. These agents are granted authority
through open ended legislation whose subjective interpretations can
potentially lead to legally questionable enforcement policies.
While employed as a land surveyor, I have been told by various
landowners that they had intentionally obliterated all traces of protected
resources, such as wetlands, in an attempt to avoid costly conservation
efforts or even the effective loss of useable areas of their land. These acts
are never beneficial to the environment and seldom end in amicable
relationships between land owners and regulatory agencies.
The successful execution of environmental conservation necessitates
the cooperation of all concerned parties. Effective participation of landowners
in conservation efforts requires that laws governing the environment and
property rights have a clear delineation of their limits and intentions.
Background
In 1921, Albert Einstein said, “For nothing is more destructive of
respect for the government and the law of the land than passing laws which
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cannot be enforced” (Einstein 1960, 6). Legislative bodies should strive to
clearly define both the intent and scope of any law they pass. Although
equivocal language allows these laws to evolve and account for
unpredictable situations, it also permits reach beyond its envisioned scope or
misinterpretation of its intent. Judicial review of existing legislation
consistently enlightens the inconstant nature of the interpretation and
enforcement of these laws.
A short primer on property, ownership, and police power
Words and grammar are important. How a particular sentence is
worded or punctuated can significantly affect the meaning of a sentence. The
U.S. legal system is based around how these words and sentences are
interpreted. To understand property requires understanding the definitions
of words as the law sees them.
Historically, governments have taken property from individuals
whenever they chose. To prevent gratuitous seizure of private property by
a government, the Fifth Amendment to the U.S. Constitution states, "No
person shall be … deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation." Providing both due process and just compensation are
rendered, a governmental agency may use this police power, also known as
eminent domain, to acquire private land for “public use.” “There are two
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types of governmental appropriations of property—commonly called
‘takings’” (Whealdon n.d.).
Joseph Whealdon (n.d.) continues by explaining that “direct
condemnation” is when a government exercises its power of eminent domain
and “inverse condemnation occurs where the government takes property
from an individual but denies that it is using its power of eminent domain.”
One way that indirect condemnation occurs is through regulatory taking. “A
regulatory taking occurs when the value or usefulness of private property is
diminished by a regulatory action that does not involve a physical occupation
of the property” (Levald, Inc. v. City of Palm Desert 1993). For example, a
zoning board passing a new regulation that prevents an individual from
building on her land in a manor previously allowed, thereby reducing the
value of the property would be considered regulatory taking.
In the case Hotel and Motel Ass’n of Oakland v. City of Oakland
(2003), the court stated, “In contrast to condemnations and physical takings
… regulatory takings … do not easily lend themselves to the straightforward
application of set formulas and categorical rules.” Determining if a regulatory
taking has occurred requires judicial review subject to various conditions.
Some of these conditions are, “The economic impact of the regulation on the
landowner … The character or nature of the governmental action … Whether
the ordinance prevented a reasonable use of the property … [and] Whether
the owner of the property received a benefit that matched the burden of the
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ordinance” (Whealdon n.d.). These conditions are very subjective and must
be reviewed on a per case basis by the courts.
The U.S. court system has been reviewing these issues for over a
century. The 1887 U.S. Supreme Court case, Mugler v. Kansas, is considered
the start to the takings issue. In it, Justice Harlan stated,
The principle, that no person shall be deprived of life, liberty, or
property, without due process of law … has never been regarded as
incompatible with the principle, equally vital, because essential to the
peace and safety of society, that all property in this country is held
under the implied obligation that the owner's use of it shall not be
injurious to the community.
This ruling laid the foundation for future Supreme Court decisions that have
consistently upheld the notion of public peace and safety over private
property rights, further clouding the assessment of these rights.
Even with concise definitions, property rights remain vague.
Real Property, property as used in this paper, is defined in Black’s Law
Dictionary (2009, 1337) as, “Land and anything growing on, attached to, or
erected on it, excluding anything that may be severed without injury to the
land.” It continues by defining a right as “The interest, claim, or ownership
that one has in tangible or intangible property” (Garner 2009, 1436). Jan
Naverson (2012, 102) expands on this by stating, “Property is exclusionary”
and continues by explaining that the owner of property has the right to
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exclude others from making use of said property. While these are legitimate
interpretations of legal terms, they are still only interpretations and lack the
control a law has.
Beyond the Fifth and the Fourteenth Amendments, there is no federal
legislation specifically granting property rights. Any right a landowner retains
with ownership either has been granted at a state level or has been
determined through judicial review of said laws and their relationships to
these amendments.
Property ownership can be divided into two general categories,
private and public. Public property is defined as “State- or communityowned property not restricted to any one individual’s use or possession” and
private property is defined as “Property – protected from public
appropriation – over which the owner has exclusive and absolute rights”
(Garner 2009). Both of these definitions rely heavily on the concept of
independent ownership, the idea that a person or entity may possess land to
the exclusion of any other claim of use.
Contradictory to this concept, Joseph Sax (1971, 149) claims that
property use regularly extends beyond boundary lines and is therefore
constantly encroaching on neighboring land. The theory is that all land is
interconnected and political or civil boundaries are inconsequential to nature.
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Federal Conservation Regulations
In an effort to sustain, replenish, and protect the environment, the
U.S. has enacted several policies that encompass many issues that extend
beyond political boundaries. Two of the policies that can have a significant
effect on private property are the Clean Water Act and the Endangered
Species Act.
The Federal Water Pollution Control Act was originally enacted
in 1948. Also known as the Clean Water Act (CWA), it is “the principal law
governing pollution of the nation’s surface waters” (Copeland 2010, 1). The
CWA regulates the discharge of effluent into US waters and mandates the
control of dredging and filling of navigable waterways. The U.S. Army Corp
of Engineers (USACE) considers the CWA to include waters or wetlands
adjacent or connected to navigable waters (Rapanos et ux., et al. v. United
States 2006). As the EPA estimates that “approximately 75 percent of
wetlands are privately owned” (U.S. Environmental Protection Agency 2012),
this regulation may significantly impact landowners.
In Rapanos et ux., et al. v. United States, Chief Justice Roberts noted
that the U.S. Supreme Court had previously instructed the EPA and the
USACE to establish definable limits that may be adhered to regarding the
CWA, which they failed to do. He went on to state, “It is unfortunate that no
opinion commands a majority of the Court on precisely how to read
Congress' limits on the reach of the Clean Water Act” (Rapanos et ux., et al.
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v. United States 2006). This lack of decisive legislation enables policy
enforcers to control as far as they choose until overruled by judicial review
and places the burden of proof on the individual landowner.
In 1973, the Endangered Species Act (ESA) was passed by
Congress. The ESA “recognized that our rich natural heritage is of ‘esthetic,
ecological, educational, recreational, and scientific value to our Nation and
its people’” (U.S. Fish & Wildlife 2013). The ESA grants the authority of any
person or governmental body to bring suit in district court on behalf of an
endangered or threatened species against any person or governmental
agency in violation of same (Endangered Species Act of 1973). More than
sixty four percent of the United States is privately owned (Natural Resource
Council of Maine. n.d.). Logic dictates that a significant portion of species
habitats would reside on private land and therefor open landowners up to
potential litigation.
In addition to the potential law suits the ESA authorizes, it also grants
the Secretary of the Interior the authority to “acquire by purchase, donation,
or otherwise, lands, waters, or interests therein, and such authority shall be
in addition to any other land acquisition authority vested in him”
(Endangered Species Act of 1973). The statement, “or otherwise,” removes
virtually any limits to how land or the use of land is acquired. Acquisition of
this nature would most certainly be of private land.
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Conclusions
Although potentially intended to allow room for either its own evolution
or for the inability to anticipate every possible scenario, the lack of definition
of scope and intent in many laws and policies leaves them confusing and
possibly ineffectual. Whether this ambiguity is intentional or not, it can
produce costly situations requiring use of significant time and money.
Decisions are made by both regulatory enforcement agencies and
landowners that are reliant upon these ambiguous policies. Misinterpretation
by either party can create unnecessary tension between them and may
result in costly fines, court cases or the potential destruction of private
property rights or the environment which the laws were meant to protect.
Analysis of specific instances will highlight the inconsistent interpretation of
the laws and ultimately demonstrate the need for concise legislation with
decisive wording.
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References
Copeland, Claudia. 2010. “Clean Water Act: A Summary of the Law.”
Resources, Science, and Industry Division (CRS). Accessed October 6,
2013. http://crs.ncseonline.org/nle/crsreports/10May/RL30030.pdf.
Einstein, Albert. 1960. “My First Impressions of the U.S.A.” in Ideas and
Opinions by Albert Einstein. Based on Mein Weltbild, edited by Carl
Seelig and other sources. Translated by Sonja Bargmann. United
States: Crown Publishers.
Endangered Species Act of 1973. U.S. Code 16 (2003). §§ 1531 et seq.
Garner, Bryan A. ed. 2009. Black’s Law Dictionary: Ninth Edition. St Paul,
MN: Thomson Rueters.
Hotel and Motel Ass’n of Oakland v. City of Oakland. 344 F.3d 959 (9th Cir.
2003).
Levald, Inc. v. City of Palm Desert. 998 F. 2d 680, (9th Cir. 1993).
Mugler v. Kansas. 123 US 623 (1887).
Narveson, Jan. 2012. “Property and Rights.” Social Philosophy and Policy,
27. no. 1 (January): 101-134. Accessed September 29, 2013.
http://dx.doi.org/10.1017/S0265052509990057/.
Natural Resource Council of Maine. n.d. “Public Land Ownership by State.”
Accessed October 11, 2013. http://www.nrcm.org/documents
/publiclandownership.pdf.
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Puraite, Aurelija. 2012. “Origins of Environmental Regulation.”
Jurisprudencija 19, no. 2: 657-674 Accessed September 16, 2013.
http://0-search.ebscohost.com.bianca.penlib.du.edu/login.aspx?direct
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Rapanos et ux., et al. v. United States. 547 US 1 (2006).
Sax, Joseph L. 1971. “Takings, Private Property and Public Rights.” The Yale
Law Journal 81. no. 2 (December): 149-186. Accessed October 14,
2013. http://0-www.jstor.org.bianca.penlib.du.edu/stable/795134.
U.S. Environmental Protection Agency. 2012. “Wetlands Protection.”
Accessed September 28, 2013. http://water.epa.gov/type/wetlands
/protection.cfm.
U.S. Fish & Wildlife. 2013. “ESA Basics: 40 Years of Conserving Endangered
Species.” Accessed September 29, 2013. http://www.fws.gov
/endangered/esa-library/pdf/ESA_basics.pdf.
Whealdon, Joseph Y. n.d. “A Primer in Eminent Domain and Takings Law
Under the U.S. Constitution.” American Bar Association. Accessed
September 28, 2013. http://www.americanbar.org/groups
/young_lawyers/publications/the_101_201_practice_series
/primer_eminent_domain_takings_law_under_us_constitution.html.