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Journal of Energy & Natural Resources Law Volume 5, 1987 - Issue sup1: Acquisition of Natural Resource Interests by the State
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Original Articles

Protection from Government Action Affecting Private Property Rights in Natural Resources in the United States

Jan G. Laitos Professor of law, University of Denver, College of law.
&
Donald N. Zillman Professor of law, University of Utah, College of law.
Pages 59-81 | Published online: 08 Jun 2015

  • Usery v. Turner Elkhorn Mining, Co 428 U.S. 1 (1976).
  • Declarations of public ownership of water are common in the arid western states. The Utah Code declares: “All water in this state, whether above or under the ground, are hereby declared to be the property of the public subject to all existing rights to the use thereof.” Utah Code Ann. 73–1–1.
  • Texas won a war of secession from Mexico and joined the United States nine years later in 1845. Accordingly, the United States never “owned” Texas as it did other Western states. Federal land ownership in Texas has rarely exceeded a small percentage of the land.
  • C. Rose, “Possession as the Origin of Property,” (1985) 52 U. of Chicago L. Rev. 73.
  • J. Locke, “Second Treatise of Government,” § 25, in Two Treatises of Government, (P. Laslett, rev. ed. 1960) p.327.
  • “Property interests… are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U.S. 564,577 (1972).
  • See D. Oakes, “Property Rights in Constitutional Analysis Today,” (1981) 56 Wash. L. Rev. 583, 598.
  • Valid unpatented mining claims represent a grant from the United States of a right of present and exclusive possession of the mining claim. They may be sold, transferred, mortgaged or inherited. However, ownership of the claim does not confer fee title to the minerals or lands within which the claim is located. Fee title remains with the federal government, and only passes upon issuance of a patent. U.S. v. Locke, 471 U.S. 84 (1985).
  • For a more complete discussion of the six classes of property interests in resources that may be obtained from government, see J. Laitos and R. Westfall, “Government Interference with Private Interests in Public Resources,” (1987) 11 Harv. Envt'l L. Rev. 1.
  • See Andrus v. Ailard, 444 U.S. 51, 66–67 (1979).
  • Loretta v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Kaiser Aetna v. U.S., 444 U.S. 164 (1979); Hodel v. Irving, 107 S.Ct. 2076 (1987).
  • Keystone Bituminous Coal Ass'n v. DeBenedictis, 108 S.Ct. 1232 (1987); A gins v. Tiburon, 447 U.S. 255 (1980); Goldblatt v. Hempstead, 369 U.S. 590 (1962); Andrus v. Ailard, 444 U.S. 51 (1979).
  • Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 130–131 (1978).
  • See Keystone Bituminous CoalAss'n v. DeBenedictis, 107 S.Ct. 1232, 1248 (1987).
  • Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850).
  • See R. Epstein, “Taxation, Regulation, and Confiscation” (1982) 20 Osgoode Hall L.J. 433, 435.
  • See W. Stoebuck, “A General Theory of Eminent Domain,” (1972) 47 U. of Washington L. Rev., 553, 570–72; J. Locke, “An Essay Concerning Civil Government,” in J. Locke, Two Treatises of Government, (1960) pp. 378–80.
  • See E. Freund, The Police Power (1904).
  • See Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). There is case law that seems to imply that greater judicial deference will be afforded police power regulations promoting the health and safety, and less deference given regulations advancing the public convenience or welfare. See Nashville, Chattanooga St. Louis v. Walters, 294 U.S. 405, 424–30 (1935).
  • See J. Sax, “Some Thoughts on the Decline of Private Property,” (1983) 58 Washington L. Rev. 481.
  • Pennsylvania Coal v. Mahon, 260 U.S. 393,415 (1922).
  • See J. Sax, “Takings, Private Property and Public Rights,” (1971) 81 Yale L.J. 149, 155–61; F. Michelman, “Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation Law,” (1967) 80 Harv. L.Rev., 1165, 1235–37.
  • Connolly v. Pension Benefit Guaranty Corp., 475 U.S., 106 S.Ct. 1018 (1986); Goldblatt v. Hempstead, 369 U.S. 590, 592–93 (1962); Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d 987(1985).
  • The constitutionality of retroactive legislation is not entirely predictable. In civil cases not involving natural resources, the U.S. Supreme Court has adopted the following rules: Legislation may be retroactively applied so as to upset settled expectations when (1) it is “rational”; (2) it is a curative statute designed to remedy mistakes; (3) it is not destructive of a substantive right or harsh and oppressive in result; and (4) it has a legitimate purpose furthered by rational means. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984).
  • Retroactive legislation is likely to be invalidatd when (1) there has been reasonable reliance on the prior law; (2) the legislation creates liabilities for transactions fully consummated in the past; (3) the legislation is “harsh and oppressive”; and (4) it is “arbitrary and irrational.” C. Hochman, “The Supreme Court and the Constitutionality of Retroactive Legislation,” (1960) 73 Harv. L. Rev. 692.
  • Penn Central Transp. Co. v. New York City, 438 U.S. 104, 144 (1978); Kimball Laundry v. U.S., 1,5 (1949); California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 322 (1905).
  • If government wishes to regulate a resource's use, it is more likely to opt for the police power than the eminent domain or tax power. Eminent domain results in a transfer of private property interests to the government and entails just compensation. These managerial and economic burdens may be avoided by government reliance on the police power. The tax power merely extracts money from the resource owner and does not necessarily result in the regulation of the resource's use.
  • See City of Angoon v. Marsh, 749 F.2d 1413 (9th Cir. 1984); J. Laitos and R. Westfall, “Government Interference with Private Interests in Public Resources,” (1987) 11 Harv. Envt'l L.Rev. 1, 6–9.
  • U.S. v. Causby, 328 U.S. 256 (1946); Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419, 435–438 (1982); FCC v. Florida Power Corp., 107 S.Ct.1107(1987).
  • United States v. Clarke, 100 S.Ct.1127,1129 (1980).
  • An improper purpose is where the government forces some people alone to bear public burdens which, “in all fairness and justice, should be borne by the public as a whole.” Armstrong v. U.S., 346 U.S. 40 (1960).
  • A police power regulation can become a taking if it “does not substantially advance state interests,… or denies an owner economically viable use of his land.” Agins v. City of Tiburon, 447 U.S. 255,260 (1980).
  • First English Evan. Luth. Church v. County of Los Angeles, 107 S.Ct.2378 (1987). “A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal v. Mahon, 360 U.S. 393, 416 (1922).
  • 260 U.S. 393 (1922).
  • Ibid. 414.
  • Ibid. 417.
  • 438 U. S. 104(1978).
  • Ibid. 124.
  • Ibid.
  • Ibid.
  • Ibid. 128.
  • Ruckeishaus v. Monsanto Chemical, 467 U.S. 986, 1005 (1984); Connolly v. Pension Benefit Guarantee Corp., 106 S.Ct.1018, 1027 (1986).
  • Penn Central Transportation Co. v. City of New York, 438 U.S. 104,145–46 (1978).
  • 458 U.S. 419 (1982).
  • Ibid. 425.
  • Ibid. 435.
  • 105 S.Ct.1785(1985).
  • Ibid. 1798.
  • Texaco v. Short, 454 U.S. 516 (1982).
  • Andrus v. Allard, 444 U.S. 51 (1979). The Secretary of the Interior promulgated regulations under the Eagle Protection Act and the Migratory Bird Treaty Act, prohibiting commercial transactions involving birds legally killed before the effective date of these Acts. Appellees were convicted for violations of both Acts for selling pre-existing Indian artifacts which contained eagle feathers.
  • Ruckelshaus v. Monsanto Chemical, 467 U.S. 986 (1984). Appellee Monsanto, a chemical producer, brought suit to avoid disclosure of its chemical formulas under amendments to FIFRA by the Federal Pesticide Act of 1978.
  • MacDonald, Sommer & Frates v. Yolo County, 106 S.Ct.2561 (1986). Appellant submitted a proposal to subdivide a piece of property in order to construct 159 residential lots. The Planning Commission rejected the proposal. Appellant claimed that this action restricted the property to agricultural uses, which constituted a taking of property. Agins v. Tiburón, 447 U.S. 225 (1980). After appellants had acquired five acres of unimproved property, the city prepared a plan for land use which restricted development on appellants’ property. The city then adopted zoning ordinances which permitted appellants to build between one to five single-family residences on their land. Without seeking administrative determination, appellants brought suit against the city in state court. Williamson County Regional Planning Comm'n v. Hamilton Bank, 87 L.Ed. 2d 126 (1985). Under Tennessee law, respondent's predecessor in interest obtained approval of a preliminary plot for development of a tract of land. Four years later, the zoning ordinance was changed so as to reduced the allowable density level. This zoning change was not applied to respondent's property until two years later at which time respondent filed suit.
  • Connolly v. Pension Benefit Guarantee Corp., 106 S.Ct.1018 (1986). Trustees of a multi-employer pension fund for employees under collective bargaining agreements covering employees in the construction industry in California and Nevada brought suit challenging the constitutionality of the Multi-employer Pension Plan Amendments Act of 1980. Applying retroactively, MPPAA required that an employer withdrawing from a multi-employer pension plan, under the Employee Retirement Income Security Act, pay a fixed amount to the plan.
  • Recall that the Fifth Amendment requires a taking to be for “public use.” Government regulatory power must be exercised pursuant to the police power (for local and state governments) or to an enumerated power of the United States Constitution (for the federal government).
  • Williamson County Regional Planning Comm'n v. Hamilton Bank, 87 L.Ed.2d 126 (1985); MacDonald, Sommers & Frates v. Yolo County, 106 S.Ct.2561(1986).
  • Penn Central Transportation Co. v. City of New York, 438 U.S. 104,122 (1978).
  • For example, Crookston Cattle Co. v. Department of Natural Resources, 300 N.W.2d 769 (Minn. 1980) (Cattle company sued Department of Natural Resources for granting water permit to City of Crookston while denying such a permit to plaintiff); Fischer Realty v. Board of Appeals, 402 N.E.2d 100 (App. Ct. Mass. (1980) (Plaintiff denied a special permit to fill in a canal within a floodplain zone); F. Arthur Stone & Sons v. Gibson, 630 p.2d 1164 (Kan.1981) (Property owner appealed a cease and desist order, which stopped plaintiff from pumping water from two wells on his land because he lacked the necessary permit); Chino Valley v. City of Prescott, 638 p.2d 324 (Arix. 1981) (The town of of Chino Valley brought suit to enjoin the City of Prescott from withdrawing underground water claimed by the town); Moskow v. Comm'r, 427 N.E.2d 750 (Mass.1981) (Restrictive order preventing development of more than a single family house was held to be a sufficient practical use in a wetland area); Pope v. City of Atlanta, 249 S.E.2d 16 (Ga.1978) (Restriction on land use in a stream corridor held to be a valid exercise of the police power); State v. A. Caputano Bros., Inc., 384 A.2d 610 (R.I.1978) (Defendant's failure to seek an application for a permit to fill in wetlands caused the State of Rhode Island to bring suit. Wetlands Act was upheld because defendant had received actual notice of his property's designation as wetland.).
  • For example, Bott v.Comm'r of Natural Resources, 327 N.W.2d 838 (Mich. 1982) (A bridge constructed over a creek was held not to deprive a riparian lake owner the use of his property, where the creek did not meet the log flotation test); Caponi v. Carbon, 392 N.W.2d 591 (Minn. Ct. App.1986) (Construction of two storn sewer pipes increased water volume of a pond which resulted in a taking of plaintiffs property); Zinn v. State, 334 N.W.2d 67 (Wis.1983) (A public lake which was determined to be partially covering plaintiffs land resulted in a taking); Foster v. United States, 607 F.2d 943 (Ct.Cl.1979) (A permanent taking occurred after the government denied access to the owners of a mineral interest within the boundaries of Vandenberg Air Force Base); Armijo v. United States, 663 F.2d 90 (Ct.Cl.1981) (System of paying plaintiff for lessees of grazing land failed to provide just compensation necessary under the fifth amendment); Annicelli v. Town of South, Kingstown, 463 A.2d 133 (R.I.1983) (Plaintiffs property zoned as a “high flood danger” area was deemed to be a taking although no physical entry occurred).
  • 107 S. Ct.1232(1987).
  • Ibid. 1242.
  • Ibid. 1246.
  • Ibid. 1249.
  • Ibid. 1250.
  • Ibid. 1259. The dissenters were Justices Rehnquist, Powell, O'Connor and Scalia.
  • 107 S.Ct.2378 (1987).
  • Ibid. 2389.
  • Ibid. 2393. The dissenters were Justices Stevens, Blackmun and O'Connor.
  • Ibid. 2399–400.
  • 107 S.Ct. 3141 (1987).
  • Ibid. 3143–44.
  • Ibid. 3146.
  • Ibid. 3147, n.3.
  • Ibid. 3148.
  • Ibid. 3163.
  • First English Evan. Luth. Church, supra, at 2389; Yuba Natural Resources, Inc. v. U.S., 821 F.2d 638 (Fed. Cir. 1987).
  • 438 U.S. 104 (1978). the Penn Central test was used in Hodel v. Irving, 107 S.Ct. 2076 (1987) and Bowan v. Gilliard, 108 S.Ct. 3008 (1987).
  • 447 U.S. 255 (1980). the Agins test was used in Keystone Bituminous Coal Ass'n v. DeBenedictis, 107 S.Ct. 1232 (1987) and Nollan v. California Coastal Comm'n, 107 S.Ct. 3141 (1987).
  • A regulation which will not accomplish an otherwise valid goal will be a taking if the regulation takes a critical property stick (e.g., the right to exclude others). See Nollan v. California Coastal Comm'n, 107 S.Ct. 3141 (1987).
  • Keystone Bituminous CoalAss'n v. DeBenedictis, 107 S.Ct.1232, 1249–50 (1987).
  • Ibid. 1245; Muglers. Kansas, 123 U.S. 623 (1887).
  • The “public use” requirement of the Takings Clause is synonymous with “public purpose.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229,240 (1984).
  • See Nollan v. California Coastal Comm'n, 107 S.Ct. 3141, 3150 (1987), implying that the regulation there found to be taking was not an exercise of eminent domain, but an invalid exercise of the police power.
  • See First English Evan. Luth. Church v. County of Los Angeles, 107 S.Ct.2378, 2389 (1987).
  • See W. Stoebuck, “Police Power, Takings, and Due Process” (1980), 37 Wash. & Lee L.Rev. 1057.
  • Pennsylvania Coal v. Mahon, 260 U.S. 393,415 (1922).
  • See Nectow v. City of Cambridge, 277 U.S. 183 (1928).
  • Nollan v. California Coastal Comm'n, 107 S.Ct.3141,3147 (n.3) (1987).
  • See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).
  • Manigault v. Springs, 199 U.S. 473, 480 (1902).
  • Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241–2 (1978). See also Keystone Bituminous Coal Ass'n v. DeBenedictis, 107 S.Ct.1232,1251-52; Energy Reserve Group v. Kansas Power & Light Co., 459 U.S. 400 (1983).
  • See C. Siemon, W. Larsen, and D. Porter, Vested Rights: Balancing Public and Private Development Expectations (1982).
  • It has been argued that there is one other limitation, found in the police power itself. This theory, espoused by American courts in the late 18th and 19th centuries, holds that when the people delegated their sovereign power to the legislature, they did not delegate all their power. Rather, the delegation entailed only the power to pass “reasonable” police power regulations, and not the power to pass unreasonable laws. To determine the reasonableness of a police power regulation, the courts were not limited to specific language in the U.S. or state constitutions; courts could test laws according to “natural law” and laws “fundamental” to persons living in a society.
  • This theory has largely been abandoned, and the current view is that the original delegation from the people to the legislature was a delegation of absolute power. The only limits on the legislature when it employs the police power are therefore (1) specific constitutional restrictions (e.g., the Takings and Due Process clauses); (2) common law doctrines (e.g., vesting and estoppel); and (3) the right and ability of the electorate to prevent unjust or unreasonable legislative exercises of the police power by the ballot box.
  • See generally, T. Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought” (1978), 30 Stanford L. Rev. 843; E. Corwin, “Higher Law’ Background of American Constitutional Law” (1928) 42 Harv. L.Rev. 149.

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