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Summary of Environmental Law in the United States

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15. Private Land Use Planning and Management

15.1 Zoning and Environmental Regulation of Private Land

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 (1994).

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 Private Lands

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 protected reserves.

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. 624.

15.A Legal instruments

Coastal Zone Management Act, 16 U.S.C. secs. 1451-1464

Endangered Species Act of 1973, 16 U.S.C. secs. 1531-1544

General Allotment (Dawes) Act of 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. secs. 331-358)

25 U.S.C. sec. 81, 177, 624

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