Saving, Restoring, and Preserving Natural Resources Through Eminent Domain and the
Evolving Definition of “Public Use”
by
Andrade, Amanda
Introduction
The United States Government has the power to control the use of land at the federal,
state and local level in a variety of ways. One of these ways is through the power of eminent
domain. Eminent domain is an inherent power of the federal and state governments, and a
necessary attribute of sovereignty.1 The government’s use of eminent domain has evolved
through case law in the United States. The following analysis will present the public use
requirement of eminent domain in light of the recent Supreme Court case, Kelo v. New London,
and expand upon the definition of “public use” can be used to protect natural resources in the
United States.
I.
Disaster in New Orleans
On Sunday, August 28, 2005, at 8:00am the National Weather Service upgraded
Hurricane Katrina to a Category 5 storm, the highest possible rating.2
As Katrina was upgraded to a Category 5, “potentially catastrophic” storm, NOAA
predicted “coastal storm surge flooding of 15 to 20 feet above normal tide levels.” 3 The levee
1
Kohl v. United States, 91 U.S. 367 (1875).
2
National Weather Service National Hurricane Service,
http://www.nhc.noaa.gov/archive/2005/pub/al122005.public.020.shtml? (last visited November 24, 2008).
3
New Orleans braces for monster hurricane, CNN.com,
http://www.cnn.com/2005/WEATHER/08/28/hurricane.katrina/ (last visited November 24, 2008).
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protecting the city of New Orleans from Lake Pontchartrain is only 17.5 feet tall, but storm
surges of 15 to 20 feet above the normal tide levels were predicted.4 At 9:30am, with wind speed
of up to 175 miles per hour, New Orleans Mayor Ray Nagin ordered mandatory evacuations
from the city of New Orleans.5
Less than twenty four hours after the National Weather Service upgraded Hurricane
Katrina to a Category 5 storm, Katrina make landfall on the Louisiana coast with winds of nearly
145 miles per hour.6 By 8:00am a massive storm surge in New Orleans sends water spilling up
Lake Borgne and the lower reaches of the Mississippi River.7 Local officials immediately
reported flooding of the city.8 It was reported at 9:00am, that six to eight feet of water covered
the Lower 9th Ward.9 During the late morning the vital 17th Street Canal levee gave way, sending
the water from Lake Pontchartrain into the city, flooding into the then already inundated the
downtown area.10
On Tuesday, August 30, 2005, one day after the hurricane hit New Orleans, at least 80
percent of New Orleans is under water.11
4
National Weather Service National Hurricane Service,
http://www.nhc.noaa.gov/archive/2005/pub/al122005.public.023.shtml? (last visited November 24, 2008).
5
Gordon Russell, "Nagin Orders First-Ever Mandatory Evacuation of New Orleans," New Orleans Times-Picayune,
28 August 2005.
6
National Weather Service National Hurricane Service,
http://www.nhc.noaa.gov/archive/2005/pub/al122005.public_a.026.shtml? (last visited November 24, 2008).
7
Katrina: What Happened When, Fact Check, http://www.factcheck.org/article348.html (last visited November 24,
2008).
8
Katrina: What Happened When, Fact Check, http://www.factcheck.org/article348.html (last visited November 24,
2008).
9
TPM Hurricane Katrina Timeline, http://www.talkingpointsmemo.com/katrina-timeline.php (last visited November
24, 2008).
10
John McQuaid, "Katrina trapped city in double disasters," New Orleans Times-Picayune, 7 Sept 2005.
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Hurricane Katrina was a major catastrophe.12 It was reported that more than 1,800 people
lost their lives.13 The hurricane left more than 600,000 domestic pets dead or without shelter.14
More than $81 billion dollars in damages occurred as a result of the storm.15 Hurricane Katrina
affected an estimated 9.7 million people in the Alabama, Louisiana, and Mississippi region.16
The estimated property damage was $96 billion multi-state area in the with 300,000 homes made
uninhabitable, 118 million cubic yards of debris were left behind, an estimated 1,800 people lost
their lives to the storm and ensuing flood, the survivors who were displaced spent years piecing
their lives back together. New Orleans is not the same, and may never be.17
Representative William Jefferson, of Louisiana, described Katrina as:
The most horrific scenes I’ve ever seen. I couldn’t imagine that we would have
seen it exactly as we did. It looked as if a bomb had exploded along the coast of
Mississippi. And then when we got to my home state of Louisiana and my home
district, covered with water, just 80 percent of the city, just a massive
devastation.18
Hurricane Katrina was a disaster of immense proportions, and produced storm surges of a
destructible magnitude. These storm surges resulted in numerous breaches and failures of
11
TPM Hurricane Katrina Timeline, http://www.talkingpointsmemo.com/katrina-timeline.php (last visited
November 24, 2008).
12
CBS: Face The Nation (CBS television broadcast Sept. 4, 2005) 2005 WLNR 13943403.
13
U.S. Department of Health & Human Services,
http://www.hhs.gov/disasters/emergency/naturaldisasters/hurricanes/katrina/index.html (last visited November 24,
2008).
14
Martin Cassidy, Greenwich Time, 2007 WLNR 21159491.
15
U.S. Department of Health & Human Services,
http://www.hhs.gov/disasters/emergency/naturaldisasters/hurricanes/katrina/index.html (last visited November 24,
2008).
16
Census Bureau Estimates Nearly 10 Million Residents
Along Gulf Coast Hit by Hurricane Katrina, U.S. Census Bureau, http://www.census.gov/PressRelease/www/releases/archives/hurricanes_tropical_storms/005673.html (last visited November 24, 2008).
17
White House, The Federal Response to Hurricane Katrina: Lessons Learned,
http://www.whitehouse.gov/reports/katrina-lessons-learned.pdf (last visited November 24, 2008).
18
Supra note 12.
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levees, flooding approximately seventy-five to eighty percent of the New Orleans metropolitan
area.19
The overtopping waters of Lake Borgne at the east end of the flood protection system
were the most severe.20 The waters of the lake were driven west producing a storm surges of
eighteen to twenty-five feet, massively overtopping the levees immediately west of Lake
Borgne.21
Raymond Seed, a Professor of Civil and Environmental Engineer from the University of
California, Berkeley was a member o the NSF-Sponsored Levee Investigation Team.22 During
his testimony before the Committee on Homeland Security and Government Affairs in the U.S.
Senate, Professor Seed stated, “Most of the levee and floodwall failures were caused by
overtopping, as the storm surge rose over the tops of the levees and their floodwalls and
produced erosion that subsequently led to failures and breaches.”23 The Levee Investigation
Team determined water cascading over concrete floodwalls, subsequently carving sharply etched
trenches at the back side of the wall, reduced the lateral support at the back side of the walls,
thereby leaving them vulnerable to the high water forces on the outboard faces.24 Another failure
noted were weaknesses at “transition” sections, where two different levee and/or wall systems
joined together.25
19
Hurricane Katrina: Performance of the Flood Control System: Hearing Before the Comm. on Homeland Security
and Governmental Affairs, 109th Cong. 2 (2005) [hereinafter Seed Hearing] (statement of Raymond Seed).
20
Supra note 19, at 2.
21
Id.
22
Id. at 1.
23
Id. at 2.
24
Id.
25
Id. at 3.
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A Preliminary Report on the Performance of the New Orleans Levee Systems in
Hurricane Katrina was issued. The report stated, “Although it is somewhat customary to expect
levee failures when overtopping occurs, the performance of many of the levees and floodwalls
could have been significantly improved, and some of the failures likely prevented, with relatively
inexpensive modifications of the levee and floodwall system details.
The addition of
overtopping erosion protection at the landside toes of the floodwalls through the provision of riprap, concrete splash slabs, or even paving of the ground surface at the inboard faces of the levee
crest floodwalls might have been effective in reducing this erosion, and might have prevented
some of the failures observed.26
II.
Natural Disaster or Just a Disaster?
"Hurricane Katrina was the most catastrophic natural disaster in our
nation's…We must remember the devastation wrought by Katrina and remove any
complacency with regard to preparing ourselves and our loved ones for
disasters."27
Was Hurricane Katrina a natural disaster or just simply a disaster? The argument has
been made that the massive widespread destruction that occurred post-Katrina was anything but
a natural disaster. It was just a disaster.
Natural disasters cannot be prevented or avoided. The term “natural disaster” implies the
absence of a human cause.28 Mother Nature causes hurricanes, tornados, and earthquakes.29
26
Supra note 17, at 6.
27
Hurricane Katrina One Year Later, http://www.fema.gov/hazard/hurricane/2005katrina/anniversary.shtm (last
visited November 24, 2008).
28
Kelly Blackwood, Katrina’s Tort Litigation: An Imperfect Storm, 20 – SPG Nat. Resources & Env’t 31 (2006).
29
Supra.
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Most would agree that Hurricane Katrina itself was a natural disaster as a hurricane is a force
beyond that of human capacity.
According to a White House report evaluating Katrina’s aftermath and the implications
for disaster preparedness relief, “Hurricane Katrina was the most destructive natural disaster in
U.S. history.”30 But was the aftermath of Katrina a “natural disaster?”
As the Times-Picayune, New Orleans's local newspaper, surmised, “[N]o one can say
they didn't see it coming.”31 The Times-Picayune published a five-part series predicting this type
of disaster in 2002.32
Even the Federal Emergency Management Agency (FEMA) recognized
this threat as one of the top three most worrisome scenarios in early 2001.33 Adequate measures
were not taken to prevent the tragedy. Thus, when Hurricane Katrina hit New Orleans, the levee
system was still defective.34
Even after all of this information previous to Hurricane Katrina, can we still say what
happened in New Orleans was a natural disaster? Can we still say that what happened was
unavoidable?
30
Supra note 17, at 19.
Bill Walsh, Bruce Alpert & John McQuaid, “Feds' Disaster Planning Shifts Away from Preparedness,” New
Orleans Times-Picayune, 31 August 2005, http://www.nola.com/katrina/pages/ (last visited November 24, 2008).
31
32
Jim Wilson, New Orleans is Sinking, Popular Mechanics,
http://www.popularmechanics.com/science/research/1282151.html (last visited November 24, 2008) (“During a
strong hurricane, the city could be inundated with water blocking all streets in and out for days, leaving people
stranded without electricity and access to clean drinking water. Many also could die....”).
Gordon Russell, "Nagin Orders First-Ever Mandatory Evacuation of New Orleans," New Orleans Times-Picayune,
28 August 2005.
33
Eric Berger, New Orleans Faces Doomsday Scenario, http://www.chron.com/disp/story.mpl/nation/1153609.html
(last visited November 24, 2008).
34
See Seed Hearing, supra note 19.
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Could the disaster that ensued after Hurricane Katrina in New Orleans have been avoided
or contained? Was the breach of the levees in New Orleans that occurred during Hurricane
Katrina a preventable disaster? This paper proposes the answer is yes.
How could the states power of eminent domain be used prevent natural disasters?
Hurricane Katrina was one of the worst natural disasters in our Nation’s
history and has caused unimaginable devastation and heartbreak throughout
the Gulf Coast Region. A vast coastline of towns and communities has been
decimated.
—President George W. Bush, September 8, 200535
III.
Tulane Professor’s Theory
Professor Oliver Houck, a New Orleanian, is a professor at Tulane University Law
School. Professor Houck’s interests include environmental law and natural resources. His
classes emphasize relationships between ecology and the law.36
Post-Katrina Professor Houck wrote numerous articles reflecting on the disaster in New
Orleans. In his article entitled “Can We Save New Orleans?” Professor Houck proposed the
following idea:
Suppose, now, we were to start from a different point of departure. We aim to
maximize the sustainability of the natural systems of the Louisiana coastal
zone…The goal here is not maximum human development but a coastal zone that
will maintain itself and its inhabitants for generations to come. The mechanism is
to use the coast as a first line of defense. And to cede it, including the violence of
floods and storms, the space it needs to protect us, and thrive.37
If we are not going to try to protect everything with large structural works, then
we are going to have to give water its space, as the Dutch themselves have
35
Proclamation by the President: National Day of Prayer and Remembrance for the Victims of
Hurricane Katrina, The White House, http://www.whitehouse.gov/news/releases/
2005/09/print/20050908-12.html (last visited November 24, 2008).
36
Oliver Houck, Tulane University Law School, http://www.law.tulane.edu/tlsfaculty/profiles.aspx?id=430 (last
visited November 28, 2008).
37
Oliver Houck, Can We Save New Orleans? 19 Tul. Envtl. L.J. 1, 50 (2006).
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concluded. The idea is not revolutionary. We routinely take space for highways
and other public works, with compensation, but with no greater rationale than the
public good. The Supreme Court has recently approved takings for such
dubiously public ventures as shopping malls, which makes taking private property
to protect the general public, and the private owners themselves, from hurricanes
seem like a no-brainer. Truth is we rarely buy space for natural processes, but
there is no reason not to. In fact, always in response to disasters and never
without pin, we have actually gone in this direction several times.38
Could government at federal, state, and local levels use the power of eminent domain to
save, restore and preserve these natural resources?
Can the governmental at the federal, state, and local levels use the power of eminent
domain to save, restore, and preserve natural resources?
Pre-Katrina, Louisiana asked the federal government to spend $14 billion for coastal
restoration.39 Post-Katrina, Professor Houck suggests another zero must be added to that number
to offset that number for coastal restoration.40
IV.
Eminent Domain
Eminent domain is the power to “take” private property for public use or for a public
purpose. Eminent domain is an inherent power of federal and state governments and a necessary
attribute of sovereignty.41 It is recognized by all fifty States and the federal government.42
38
Houck, supra note 37, at 51.
39
Houck, supra note 37, at 29.
40
Houck, supra.
41
Houck, supra.
42
See Kohl, 91 U.S. 371-75 (1875) (holding that eminent domain is an inherent attribute of sovereignty, and that the
federal government has such power even if it is not expressly conferred by the Constitution.)
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The Fifth Amendment of the United States Constitution provides that “private property”
shall not be “taken for public use without just compensation.” The Fourteenth Amendment
makes this federal guarantee of just compensation applicable to the states.
Conventional exercises of eminent domain present three constitutional questions in
respect to the Takings Clause.43 The first is whether the interest of the claimant that has been
taken is “private property.”44 Second is whether the condemnation is for a “public use.” Finally
the third is whether the payment offered by the government constitutes the “just compensation”
required by the Constitution.45
The Supreme Court has supported eminent domain since the nineteenth century. 46 The
Takings Clause requires the governmental taking through eminent domain power be for a “public
use.”47 What exactly constitutes a public use has gone through numerous modifications over
time.48 The following three cases review the Supreme Court’s continuing debate on when a state
should be allowed to take property through eminent domain for a private party by deeming that
private party’s use a public use.
Berman v. Parker
43
Houck, supra note 37, at 29.
44
Houck, supra.
45
Houck, supra.
Aaron Mensh, “’Upon Further Review’: Why a Sports Stadium Can Justify an Eminent Domain Taking,” 40
Conn. L. Rev. 1623 (2008).
46
47
Supra.
48
2A Julius L. Sackman, Nichols on Eminent Domain, § 7.01[2] (3d ed. 2006).
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During the first half of the twentieth century, federal funds were directed into urban
redevelopment plans.49 The primary goal of these projects was to eliminate slums, while at the
same time, promote commercial development.50
At that point in time a majority of court
permitted the use of eminent domain referring to blighted areas as a public benefit. 51 During this
period one of three most prominent eminent domain cases reached the Supreme Court in 1954,
Berman v. Parker.52
In Berman v. Parker, the District of Columbia received congressional authorization to
initiate an urban redevelopment plan in a statutorily determined “slum” of southwest
Washington, D.C. entitled “Area B.”53 Samuel Berman was the owner of a department store
within the bounds of the proposed redevelopment plan. Mr. Berman objected to the inclusion of
his property because it would be placed into the hands of another private party. 54 Mr. Berman
attempted to stop the condemnation of his department store by arguing that the use of eminent
domain was an unconstitutional taking because the appropriation of his property did not meet the
public use requirement.55 This case forced the Supreme Court to answer the questions of
whether a redevelopment plan constitutes a public use and if a private party could be the
beneficiary of an eminent domain taking.56 The Supreme Court summarized Berman’s argument
49
See, e.g., Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An Argument for Banning
Economic Development Takings, 29 Har. J.L. & Pub. Pol’y 491, 510 (2006).
50
Supra.
Supra.
52
Berman v. Parker, 348 U.S. 26 (1954).
53
Berman, 348 U.S. at 29-32. Congressional authorization to redevelop “Area B” came through the District of
Columbia Redevelopment Act of 1945.
54
Id, at 31. Berman claimed his property was neither blighted nor residential, and that it would not be used by the
public, but instead taken by a private party.
55
Id.
56
Joshua U. Galperin, “A Warning to States-Accepting this Invitation may be Hazardous to Your Health (Safety and
Public Welfare): An Analysis of Post-Kelo Legislative Activity,” 31 Vt. L. Rev. 663, 665-66 (2007).
51
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by asking if it was constitutional “to take a man’s property merely to develop a better balanced,
more attractive community.”57
In its decision the Supreme Court found for the Planning Commission.58 The Supreme
Court based its decision on legislative deference.59 The majority opinion argued, “when the
legislature has spoken, the public interest has been declared in terms well-nigh conclusive.”60
The majority reasoned that the judiciary has “an extremely narrow” role in determining what is a
valid public purpose.61 If the goal is within Congress' capacity, “the power of eminent domain is
merely the means to the end.”62 In Berman the Court established a central feature of takings
jurisprudence: if a legislative goal is deemed justifiable, the use of eminent domain will also be
justifiable.63
The Court used this rational to hold that redevelopment is a valid public use.64 Justice
Douglas rejected the idea that land cannot pass from one private owner to another private owner.
He stated, “Once the question of the public purpose has been decided…the amount and character
of land to be taken…rests in the discretion of the legislative.65
Berman laid the foundation for modern eminent domain jurisprudence.66 The Supreme
Court illustrates that the Fifth Amendment is not violated if a private party benefits from a
57
Berman, 348 U.S. at 31.
Id. at 36.
59
Id. at 32.
60
Id.
58
61
Id.
62
Berman, 348 U.S. at 33.
63
Galperin, supra note 56, at 666.
64
Berman, 348 U.S. at 33. The Court reasoned that if the redevelopment plan attempted to make Washington D.C.
“beautiful as well as healthy, spacious as well as clean,” than the public use requirement was met.
65
Id. at 33-36 (“The public end may be as well or better served through an agency of private enterprise….”).
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taking.67 It is suggested that the case’s most lasting principle is the deference courts must show
legislatures when determining public use in eminent domain cases.68
The Court held in Berman that taking private property and conveying it to another private
party could constitute a public use when done to remedy urban blight and substandard housing.69
Hawaii Housing Authority v. Midkiff
Thirty years later the Supreme Court decided major eminent domain case in Hawaii
Housing Authority v. Midkiff.70 The Hawaii Legislature attempted to remedy concentrated land
ownership which it felt ran against the public welfare by passing the Land Reform Act of 1967. 71
Hawaii’s native culture relied on a feudal land system which resulted in almost no private
ownership of land in Hawaii.72 The Land Reform Act of 1967 allowed the state to use eminent
domain to condemn land from a few landholders, compensate landowners just compensation for
the taking of their land, and turn around and sell the fee interests to those who leased the land.73
Twelve years after the passage of the Land Reform Act, Hawaii native Frank Midkiff
refused to comply with the state’s condemnation of his land through eminent domain.74 He filed
66
Mensch, supra note 46, at 1632.
Alan T. Ackerman, “Kelo City of New London: The Answer to the Public Use Question or Just a Source of More
questions, in Current Condemnation Law: Takings, Compensation, & Benefits 294 (Alan T. Ackerman & Darius
W. Dynkowsi eds., 2d ed. 2006) at 300.
67
68
69
Galperin, supra note 56, at 667.
Berman, 348 U.S. at 33.
70
Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
71
Id. at 232-234.
72
Id. The Polynesian people that settled Hawaii practiced a land ownership system that clashed with American
ideals. Efforts to change the Polynesian style of property ownership, beginning in the early- 1800s failed. As a
result, in the 1960s, seventy-two landholders owned forty-seven percent of the state’s land.
73
Id. at 233-234 (explaining the scheme behind the Hawaii legislature’s Land Reform Act).
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suit against Hawaii Housing Authority claiming the Act was unconstitutional.75 Midkiff claimed
the Act violated the Fifth Amendment because the purpose of the Act did not qualify as a public
use.76 The question asked was whether “if a direct and immediate transfer of taken property to
private ownership is a per se violation of the Public Use Clause.77
The Supreme Court once again sided with the Hawaii legislature upholding the
condemnation of Midkiff’s property.78 The majority opinion explained, “The mere fact that
property taken outright by eminent domain is transferred in the first instance to private
beneficiaries does not condemn that taking as having only a private purpose.”79 The only
constraint the Supreme Court recognized was that eminent domain may not be used for a “purely
private taking.”80
Midkiff reinforced the proposition that a court must show deference in these matters.81
The court once again stated that its role is “extremely narrow” when “reviewing a legislature’s
judgment of what constitutes a public use … when the eminent domain power” is at issue. 82
Unless the governmental taking is “palpably without reasonable foundation,” a court should not
74
Id. at 234-235.
75
Id.
Id. at 242. The Court had to consider whether “[r]egulating oligopoly and the evils associated with it” was a valid
exercise of the state’s police power constituting a public purpose.
76
77
Galperin, supra note 56, at 668-669.
78
Midkiff, 467 U.S. at 245.
79
Id. at 243-244.
Id. (concluding that the Hawaii Act was not a “purely private taking, because it tried to “attack certain perceived
evils of concentrated property ownership in Hawaii”).
80
81
Id. at 240 (citing Berman, 348 U.S. at 32).
82
Id. at 240
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substitute its judgment for that of the legislature.83 Midkiff leaves the meaning of public use
“open to widely varying interpretations.”84 The case implies that “eminent domain is but a
means to accomplishing a legislative end, that is, a public use.”85 The Court suggests when
giving the greatest deference to the legislature, that few, if any, takings will be held
unconstitutional.86 The Court in Midkiff further expanded the definition of public use when it
allowed the legislature to redistribute land from lessors to lessees in order to break up a land
oligopoly.87
Kelo v. New London
Finally, in Kelo v. New London, the Supreme Court broadened the Takings Clause and
definition of public use allowing the city of New London, Connecticut to take land for economic
development.
The city of New London had been in an economic recession for a number of years.88
These harsh economic conditions “prompted state and local officials to target New London …
for economic revitalization.”89
83
The focus of the New London Development Corporation
Id. at 241 (citing United States v. Gettsburg Electric Ry. Co., 160 U.S. 668, 680 (1896).
84
Ackerman, supra note 67, at 301.
Michael A. Land, “Taking Back Eminent Domain: Using Heightened Scrutiny to Stop Eminent Domain Abuse,”
39 Ind. L. Rev. 449, 452 (2006).
85
86
Mensch, supra note 46, at 1633.
87
Hawaii Housing Authority v. Midkiff
Kelo v. City of New London, 545 U.S. 469, 473 (2005). The city’s unemployment rate was twice as high as
Connecticut’s unemployment rate, and its population was the lowest it had been in nearly eighty years. The final
blow to New London came when the federal government closed its Naval Undersea Warfare Center that had
provided the city with 1500 jobs.
88
89
Id. at 473.
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(NLDC) was on revitalizing the Fort Trumbull neighborhood. 90
The NLDC created an
“integrated development plan” with approval from the city council and state.91
The plan
envisioned numerous new features for the downtown New London area, the key being a $300
million Pfizer facility expected to serve as a catalyst for the area’s rejuvenation. 92 The NLDC’s
plan was to accomplish the goal of economic revitalization became the subject of Kelo and the
point of major public debate.93
Susette Kelo was one of the nine landowners who refused to sell her land. 94
The
landowners argued that the taking of their land was in violation of the “public use” restriction in
the Fifth Amendment.95 There was no allegation by the city or state that the properties were
blighted or in poor condition; rather, the properties were condemned only because they happened
to be located in the NLDC’s development plan area.96 The petitioners argued that the courts
“should require a ‘reasonable certainty’ that the expected public benefits will actually accrue.”97
The Supreme Court granted certiorari to answer the question of “whether a city’s decision to take
90
Id. The NLDC was a private nonprofit entity established by the City in the earlier years to assist in planning
economic development. The NLDC used $15.35 million in the form of two bond issues from Connecticut, $10
dedicated solely to creating Fort Trumbull State Park. The Fort Trumbull neighborhood was where the Naval
Undersea Warfare had been located.
91
Id. at 473-74.
Id. The plan was to build a waterfront conference hotel, a “small urban village including restaurants and
shopping, a pedestrian “riverwalk”, new residences in an urban neighborhood, a new U.S. Coast Guard Museum,
and 90,000 square feet of office space.
92
93
Galperin, supra note 56, at 670.
94
Kelo, 545 U.S. at 475.
95
Id.
96
Id.
97
Id. at 487.
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property for the purpose of economic development satisfies the ‘public use’ requirement of the
Fifth Amendment.”98
The majority opinion held that the city’s use of eminent domain to transfer property from
one private owner to another to promote economic development was in fact a legitimate public
use.99 The Court stated “promoting economic development … is a traditional and long accepted
function of government.”100 The Court in Kelo maintained economic development is no different
from other public purposes it has recognized in previous cases. 101 A “carefully formulated” and
“comprehensive” plan, such as that made by the NLDC, qualifies as a public use.102
Kelo expanded upon and broadened the Taking Clause by recognizing that economic
development does not violate the public use limitation.103 The Court notes that the definition of
“public use” has “steadily eroded over time”104 The definition is “impractical given the diverse
and always evolving needs of society.”105
The Court had “long ago rejected any literal
requirement that condemned property by put into use for the general public.”106 The Court
applied Berman and Midkiff to give deference to the city of New London and NLDC to decide
98
99
Id. at 477. The Connecticut Supreme Court had determined the takings were constitutional.
Id. at 484.
100
Id.
101
Id. at 484-85. Justice Stevens presented cases in which the Court found various public purposes. One of the
cases mentioned is Ruckleshaus v. Monsanto, in which the Court accepted Congress’s purpose of “eliminating a
‘significant barrier to entry in the pesticide market.’”
102
Id. at 483-84.
103
Mensch, supra note 46, at 1623.
104
Kelo, 545 U.S. at 479. The Court refused to apply a new, narrower standard for assessing economic development
as a public use.
105
Id. The Court refused to apply a new, narrower standard for assessing economic development as a public use.
106
Id. at 479 (quoting Hawaii House Auth. v. Midkiff, 467 U.S. 229, 299. 244 (1984)).
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what was in the city’s best interest.107 Kelo broadened the previously narrow definition of
“public use,” approving the condemnation of land through eminent domain if it is part of a larger
economic development plan, and not directly for the benefit of the general public.108
V.
Expanded Definition of “Public Use” applied to Natural Resources
While the public use requirement of eminent domain has expanded to include takings for
condos and shopping centers, why not expand it to use to save, preserve, and restore natural
resources? The power of eminent domain should be used, “whenever the public interest or
necessities requires it.”109 The twentieth century introduced an even more expansive approach to
eminent domain. Justice Holmes stated: “It may sometimes be hard to draw the line that is
supposed to limit the authority of the legislature to exercise or delegate the power of eminent
domain.”
VI.
Protecting Natural Resources Through Eminent Domain
A. Wetlands
Wetland loss is widespread across the United States.110 Wetlands in the United States
have been on the decline since the time the Europeans first set foot on the continent.111 In
twenty-two states more than fifty percent of their original wetland area has been lost.112
107
Galperin, supra note 56, at 673.
108
109
Sackman, supra note 48, at § 7.02[3].
J. Brian Smith, “Western Wetlands: The Backwater of Wetlands Regulation,” 39 Nat. Resources J. 357 (1999).
110
Supra, at 360.
111
Supra, at 357.
112
Supra, at 360.
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California has lost a greater percentage than any other state with a loss of ninety-one percent of
its wetlands.113
Wetlands can be defined several ways.114 Most definition of wetlands characterize the
areas as those that are permanently or seasonally wet, having soil conditions that exhibit periodic
saturation, and support vegetation adapted to saturated soil conditions.115
One of the most comprehensive definitions and widely accepted by scientists is the U.S.
Fish and Wildlife Service’s (FWS) definition of wetlands:
Wetlands are lands transitional between terrestrial and aquatic systems where the
water table is usually at or near the surface or the land is covered by shallow
water.116 For purposes of this classification wetlands must have one or more of
the following attributes: (1) at least periodically, the land supports predominately
hydrophytes; (2) the substrate is predominately undrained hydric soil; and (3) the
substrate is nonsoil and is saturated with water or covered by shallow water at
some time during the growing season each year.117
With the loss of these vast amounts of wetlands comes the destruction of the many
benefits they provide. Reduction of wetlands amounts to the loss of natural benefits that provide
including filtering pollution, controlling floods, and protecting essential habitats of amphibians,
migratory birds, and other wildlife.118
B. Prairie Pothole Region
113
114
Supra, at 361.
Supra, at 363.
115
Supra, at 363-64.
116
Supra, at 357.
117
Supra, at 364.
118
Roger L. Pederson, Farms and Wetlands Benefit from Farm Bill Conservation Measures, National Wetlands
Newsletter (Envtl. L. Inst.) 9. 10 [Sept.-Oct.] (2001).
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The Prairie Pothole Region in the north-central United States is composed of 64-millionacres and is a key breeding ground for over 60 percent of key migratory bird species of the
United States.119 Prairie potholes are depressional wetlands (primarily freshwater marshes)
found most often in the Upper Midwest, especially North Dakota, South Dakota, Wisconsin, and
Minnesota.120 “Prairie wetlands, or “potholes,” are freshwater depressions and marshes that
were created by glaciers thousands of years ago.”121
This formerly glaciated landscape is
pockmarked with an immense number of potholes, which fill with snowmelt and rain in the
spring. Some prairie pothole marshes are temporary, while others may be essentially
permanent.122
The prairie potholes are some of the most important wetlands in the world.123 It is
estimated three-quarters of all North American waterfowl originate from these regions.124
Prairie potholes support enough fish to make a considerable contribution to the bait fish
industry.125 They also support a variety of shellfish, including mussels, clams and shrimp,126
The prairie potholes provide the breeding ground for 50% or more of all North American
119
Prairie Pothole Region At the Current Pace of Acquisitions, the U.S. Fish and Wildlife Service Is Unlikely to
Achieve Its Habitat Protection Goals for Migratory Birds, United States Government Accountability Office,
[hereinafter GAO Report] http://www.gao.gov/new.items/d071093.pdf (last visited November 24, 2008).
120
Prairie Potholes, U.S. Environmental Protection Agency, http://www.epa.gov/owow/wetlands/types/pothole.html
(last visited November 24, 2008).
121
GAO Report, supra note 119.
122
Prairie Potholes, U.S. Environmental Protection Agency, http://www.epa.gov/owow/wetlands/types/pothole.html
(last visited November 24, 2008).
Ryan Fortin, “Comment: Rapanos v. Untied States - - A Historical Perspective on the Recent Decline in “Judicial
Pioneering” in Wetlands Regulation,” 33 Wm. Mitchell L. Rev. 1225 (2007).
123
124
Supra.
125
John Echeverria, “Jurisdiction - - What Exactly is a “Water of the United States,” 34A RMMLF-INST 2 (1993).
126
Supra.
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ducks.127 Additionally prairie potholes are directly beneficially to humans. They can provide the
principle source of aquifer recharge, which supply both humans and livestock with drinking
water.128
C. Preservation of Wetlands and the Prairie Pothole Region
The Department of the Interior’s U.S. Fish and Wildlife Service has made attempts to
save the Prairie Pothole Region.129 During the 20th century, the draining of wetlands and the
conversion of prairie to cropland has reduced bird habitat.130
Under the Small Wetlands
Acquisition Program the Service aims to sustain remaining migratory bird populations by
permanently protecting high-priority habitat.131
Since the inception of the program in the late 1950’s, the Service has acquired and
permanently protects about 3 million acres of wetlands and grasslands in the Prairie Pothole
Region.132 It has purchased outright almost 700,000 acres and acquired permanent conservation
easements on more than 2.3 million acres that are privately owned. 133 However, the Service
protects only about five percent of acreage in the region.134
In addition, some habitat is temporarily protected under the Department of Agriculture’s
Conservation Reserve Program.135 The Conservation Reserve Program was created by the Food
127
128
Supra.
Supra.
129
GAO Report, supra note 119.
130
Supra.
131
Supra.
132
Supra.
133
Supra.
134
Supra.
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Security Act of 1985.136
It provides for annual rental payments and cost-share assistance
programs to producers to help them safeguard environmentally sensitive land.137 The producers
agree to retire their land from agricultural purposes and keep it in approved conserving uses for
10 to 15 years.138
The Service has set a very optimistic goal. The goal acreage consists of 1.4 million acres
of wetlands and 10.4 million acres of grasslands to be protected in order to sustain the remaining
migratory bird population.139
In the past the Service relied on the fact that much of the
unprotected, migratory bird habitat was unthreatened because it was either unsuitable for
agricultural production or it was temporarily protected by the previously mentioned Department
of Agriculture conservation programs.140
Migratory Bird Conservation Funds have been used to purchase almost 700,000 acres and
acquire permanent conservation easement over more than 2.3 million acres, all privately
owned.141 The acquisition of privately owned property had been done through the use of two
mechanisms: fee-simple acquisitions (buy a piece of land) and minimally restrictive easements
(which allow farming or grazing once certain conservation measures are in place).142
I.
Conclusion
135
Supra.
136
Supra.
137
Supra.
138
Supra.
139
Supra.
140
Supra.
141
Supra.
142
Supra.
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Current federal laws and regulations are best at protecting the coastal wetlands, riverine
marshlands, and swamps.143
Currently other methods are being used to protect natural resources.
Among these
methods used are easements, conservation easements and exacted conservation easements. All
of the previously mentioned methods being used to protect natural resources are feasible. The
more important question is which method is the best for protecting prairie potholes and
wetlands?
Any method used to protect natural resources will be costly. Easements and conservation
easements are generally temporary for a definite period of time which has posed a problem as
many of the time periods are coming to an end in the years to come. Complete governmental
takings through eminent domain may require a greater output of capital initially but will not
require any additional expenditure to landowners in the future. Will governments be willing to
pay “just compensation” to take land through eminent domain to preserve natural resources?
Although this method may seem to be cost prohibitive, in retrospect it may not be. If we
consider the costs of cleanup after Katrina compared to what it would have cost to repair and
restore the levees pre-Katrina, it would have been more cost effective to protect the levees in the
first place. We can also consider the cost of insurance company to pay those with flood
insurance after a hurricane. Especially when numerous insurance companies could not pay out
after Katrina and the federal government has to bail the insurance companies out after they could
not pay insureds after Katrina.
The idea of taking private property to protect natural resources may also meet public
resistance. In Kelo the public backlash was overwhelming. However, in Kelo, the taking was for
143
Smith, supra note 109.
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building condos and shopping centers rather than protecting natural resources. In today’s “now”
society, people tend to not care about what will happen to the environment in one hundred years.
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