Ch. 7: Land Use Regulation

Pages 805-809: FEDERAL MANAGEMENT OF PUBLIC LANDS


ONLINE RESOURCES PERTAINING TO PUBLIC LAND MANAGEMENT


The headquarters of the US Forest Service maintains a website at http://www.fs.fed.us. Many individual national forests maintain their own websites, which can be located through links on the headquarters webpage at http://www.fs.fed.us/contactus/regions.shtml. National forests can be searched by name, state, or region on an interactive map. The Forest Service's website provides information about land and resource management issues. Its website also includes information on appeals and litigation concerning management plans (http://www.fs.fed.us/emc/applit/index.htm) and Forest Service directives concerning the planning process (http://www.fs.fed.us/im/directives).

The Bureau of Land Management's website is located at http://www.blm.gov/nhp/index.htm. It provides news updates about developments affecting the public lands and information about BLM's activities administering them. The National Park Service's "ParkNet" website is located at http://www.nps.gov/. It provides considerable information about visiting the national parks. For information about the history of the Park Service and its role in protecting the national parks see http://www.nps.gov/legacy/index.htm.

The Public Lands Interpretive Association, a nonprofit educational organization, in partnership with the Bureau of Land Management, and the USDA Forest Service Intermountain Region operates a Public Lands Information Center website located at http://www.publiclands.org. The site is dedicated to providing information about recreational opportunities on western public lands.

A coalition of environmental, scientific, religious and educational groups has launched the Heritage Forests Campaign to lobby for improved protection of forest areas on public lands. They maintain a website devoted to the theme of saving "our last unspoiled national forests" located at http://www.ourforests.org.

For a timber industry perspective on forest issues, see the website of the American Forest and Paper Association located at http://www.afandpa.org. The Property and Environment Research Center (PERC) in Bozeman, Montana, which promotes "free market environmentalism" has been active on public lands issues. Its report "Forests: Do We Get What We Pay For?" is available online at http://www.perc.org.

The early history of the national debate over use of the public lands law is well documented in an extraordinary online exhibition maintained by the Library of Congress. Entitled "The Evolution of the Conservation Movement: 1850-1920," the exhibition can be located online at http://memory.loc.gov/ammem/amrvhtml/conshome.html. It contains an astoundingly rich collection of photographs and documents pertaining to the history of the conservation movement that can be viewed and downloaded. Another source of information is the Forest History Society's website at http://www.foresthistory.org.

Note 8, Page 846: Takings of Personal Property v. Real Property

On June 22, 2015, the U.S. Supreme Court struck held in Horne v. Department of Agriculture that the federal government could not require raisin farmers to set aside part of their crop to give to the government under the Agricultural Marketing Agreement Act without receiving just compensation.  Writing for the Court, Chief Justice Roberts acknowledged the distinction made in Lucas between real and personal property for regulatory takings purposes.  However, he concluded that the raisin set-aside program represented a physical taking of personal property rather than a regulatory taking and therefore just compensation was required.

Page 859: The “Parcel as a Whole” and Murr v. Wisconsin

In Murr v. Wisconsin the U.S. Supreme Court addressed the "parcel as a whole" concept as described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978).  It considered whether two legally distinct, but commonly owned contiguous parcels, can be combined for takings analysis purposes.  On June 23, 2017, the Court rejected the regulatory takings challenge in a 5-3 decision authored by Justice Kennedy. The Court held that three factors should be considered in determining the appropriate denominator for regulatory takings inquiries.  These include the property’s treatment under state and local law, the property’s physical characteristics, and the property’s value under the challenged regulation with particular atention to the effect of the burdened land on the other holding. Applying these factors, the Court rejected the petitioning property owners’ claims that the takings inquiry should be limited to a parcel they had not been allowed to develop instead of both that parcel and contiguous land they owned.  Chief Justice Roberts and Justices Thomas and Alito dissented.  Justice Gorsuch did not take part in the consideration or decision of the case.  A copy of the decision is available on the Supreme Court’s website at: https://www.supremecourt.gov/opinions/16pdf/15-214_f1gj.pdf


Note 5, Page 869: The Koontz Decision

On June 25, 2013, the U.S. Supreme Court decided Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013). By a 5-4 vote the Court held that a government agency could not require the funding of offsite mitigation projects on public lands as a condition for obtaining a permit to develop wetlands unless the government’s mitigation demand had an “essential nexus” to, and was “roughly proportional” in magnitude, to the expected impact of the development.  This decision extended the “essential nexus” and “rough proportionality” requirements of regulatory takings law that previously had only applied to permit conditions requiring a dedication of a portion of real property to public use to monetary exactions.  These decisions are based on the U.S. Constitution’s requirement that private property cannot be “taken” by government for public use without the payment of just compensation, known as the Takings Clause.  In his majority opinion Justice Alito dismissed arguments that the decision will jeopardize land use regulation, noting that many states already apply similar limits on monetary exactions sought from developers.  In dissent Justice Kagan claimed that the decision will subject local government to a flood of litigation by extending the Takings Clause “into the very heart of local land-use regulation and service delivery.” Justice Alito emphasized that the decision “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners.” A copy of the decision is available online at: http://www.supremecourt.gov/opinions/12pdf/11-1447_6j37.pdf  An edited copy is being included in the 2015-16 Statutory and Case Supplement.