Summary of Environmental Law in the United States
15. Private Land Use Planning and Management
15.1 Zoning and Environmental Regulation of
The federal government has little authority over land use
planning or zoning. In a few instances, such as the Coastal Zone
Management Act, the federal government has provided incentives
for state and local governments to adopt development plans that meet
specific criteria. SeeSection 10.1: Coastal
Management and Land Use Restrictions. Other federal acts, most
notably the Endangered
Species Act (ESA), provides substantial restrictions on
development of certain critical habitat. For the most part, however,
land use and zoning decisions are typically made at the state or
local level. In most instances, the states have delegated most power
to the county or local governments. A few states, for example,
Oregon, have set statewide land use planning goals that include
environmental protection and conservation of open space. See
Or. Rev. Stat. secs. 195-97.
15.2 Takings/Expropriations and Other
Limitations on Regulation
The primary limitation on government regulation over private
property is the Fifth Amendment of the Constitution, which prohibits
private property from nacec."be[ing] taken for public use, without
just compensation." U.S.
Const. amend. V. To acquire private property for any purpose,
for example, for a park or for conservation, the government must
condemn the property through its power of eminent domain and pay the
fair market value to the property owner. In addition, federal or
state government actions that interfere too much with the
reasonable, investment-backed expectations of property owners, or
that physically occupy any private property, are unconstitutional
unless the government compensates the landowner. The courts have
also ruled that "if a regulation goes too far it will be recognized
as a taking." In recent years, the number of such "regulatory
takings" claims, particularly with respect to environmental
regulations, has increased sharply. See Pennsylvania Coal Co. v.
Mahon, 260 U.S.393, (1922); Agins v. Tiburon, 447 U.S.
255, (1980); Lucas v. South Carolina Coastal Comm'n, 112 S.
Ct. 2309 (1992); Dolan v. City of Tigard, 114 S. Ct.2886
In addition, some states have enacted legislation that allows
property owners to sue government agencies for regulatory actions
that devalue their property. For example, Texas has enacted a law
that requires a government agency to either recind a regulatory
action or pay compensation to landowners where a court determines
that the value of their property is reduced by 25 percent or more.
See Texas Gov't Code secs. 2007.001 et seq. Similar legislation has
been proposed, but not adopted on the federal level.
15.3 Policies and Incentives for Conservation on
Section 170 of the Federal Income Tax code allows deduction of
the fair market value of any land donated to a conservation
organization. 26 U.S.C. sec.
170. The same provision also allows deductions for donations of
conservation easements to land trusts and other public interest
organizations. Environmental organizations like The Nature
Conservancy have turned significant amounts of private land into
Conservation Easements. An easement is a legal right to
control certain uses of a piece of land; a conservation easement
gives the holder of the easement, usually a conservation
organization or a government agency, the right to restrict or forbid
future development on a parcel of land, even though the original
owner may continue to reside there and make some use of the
property. State common law typically governs the creation and
maintenance of easements. Most common law would not allow an
easement for conservation purposes. As a result, in most states,
conservation easements are only legal where a state statute has
identified the process for creating and maintaining a conservation
easement. Land trusts have been established nationwide to help
private landowners achieve permanent protection of lands that
contain valuable wildlife habitat or that are of historical,
agricultural, recreational, or scenic importance. Land trusts assist
both private landowners and government agencies, either by
facilitating the transfer of land to the public or by managing the
land in accordance with the purpose of the charitable donation. A
few states, such as Oregon, have extended similar concepts from
nacec.land to water rights. Or. Rev. Stat sec. 271.715.
15.4 Land Tenure
Several federal land tenure laws apply to Native American lands.
Toward the end of the nineteenth century, Congress enacted
legislation that divided Native American reservations into
homestead-size tracts. See, e.g., General Allotment (Dawes)
Act of 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. secs.
331-58). Under the Non-Intercourse Act, the federal government
must approve any contract for the sale, alienation, or leasing of
Native American property. Congress passed the Act to assert the
primacy of federal law and to guarantee Native American rights of
occupancy to their lands. 25 U.S.C. sec.
177. Any agreement with any Native American tribe for the
delivery of any value must: (1) be in writing; (2) have the approval
of the Secretary of the Interior and the Commissioner of Indian
Affairs; (3) contain all names of parties or scope of tribal
authority; and (4) state all relevant terms of the agreement,
including a "distinctly stated" tolling period. Any contract
violating these requirements is invalid. 25 U.S.C. sec.
81. For the purpose of improving land tenure patterns and
consolidating Pueblo Indian lands, the Secretary of the Interior may
acquire, in trust, any lands, improvements, or water rights within
the Pueblo land consolidation areas. Either party may reserve
minerals, easements, or rights of use. 25 U.S.C. sec.
15.A Legal instruments
Zone Management Act, 16 U.S.C. secs. 1451-1464
Species Act of 1973, 16 U.S.C. secs. 1531-1544
Allotment (Dawes) Act of 1887, ch. 119, 24 Stat. 388 (codified as
amended at 25 U.S.C. secs. 331-358)
sec. 81, 177, 624