Tuesday, April 16, 2019

Does Soil Erosion Pose A Constitutional Issue?


When we think of the Constitution, we tend to think of freedom of religion or freedom of the press.  Maybe due process or equal protection comes to mind.  Hardly ever does the right to not have soldiers quartered in our homes during peace time without consent ever cross one’s mind.  Neither does soil erosion.    But, is there a connection?

Soil erosion and the Constitution – that’s the topic of today’s post.

Soil Erosion

In terms of quantity, sediment - the soil or mineral material transported by water and deposited in streams or other bodies of water - is the worst pollutant of the nation's waters. While the non-farm media tends to pin the blame on agriculture, and it is true that a significant portion of it results from soil erosion of farmland, much of the sediment comes from nonagricultural activities.  In either situation, the most effective way of controlling soil erosion is by the use of proper soil conservation practices and techniques.  The nation’s farmers and ranchers are to be commended for utilizing them.  The few “bad apples” that exist give a bad rap to the vast majority who carefully and thoughtfully utilize good husbandry practices. 

Federal regulation.  The federal government has long been concerned with the problem of soil erosion. Two major agencies within the United States Department of Agriculture (USDA) that have substantial soil erosion responsibilities are the Natural Resource Conservation Service (NRCS) and the Farm Service Agency (FSA). In general, the federal soil conservation programs are limited to conservation incentives in the form of technical assistance and cost sharing. The Soil Conservation Service (SCS) was created in 1935 to be the primary federal agency involved in soil erosion control. Its programs, consisting mainly of technical assistance, are administered in cooperation with local soil and water conservation districts. The Agricultural Stabilization and Conservation Service (forerunner of the FSA) was created at approximately the same time as the SCS, but for a different purpose. The original purpose of the ASCS was to be the vehicle for administering the Agricultural Adjustment Act (AAA) of 1938, an act that provided for a series of direct payments to farmers in exchange for their participation in acreage reduction programs.  When the initial acreage reduction program was held unconstitutional in United States v. Butler, 297 U.S. 1 (1936), a temporary program was instituted to provide payments to farmers for planting cover crops to conserve soil, a backdoor means of lowering the production of certain agricultural commodities, and thereby increasing crop prices. That program was continued in the Soil Bank and continues presently in the form of the Conservation Reserve Program . 

State regulation.  Many states also have soil erosion and sediment control statutes that require landowners to take certain actions designed to minimize soil erosion. In some states, such as Kansas, the burden is placed upon local county commissioners to take action designed to minimize soil erosion.

Constitutional issue? 

1979 Iowa case.  Landowners occasionally have challenged the validity of state soil erosion laws on the basis that the statutes are an unconstitutional exercise of the state's police power.  In an Iowa case, Woodbury County Soil Conservation District v. Ortner, 279 N.W.2d 276 (Iowa 1979), one landowner filed a complaint against an adjacent landowner with the plaintiff (county soil conservation district) claiming that his farm was being damaged by water and soil erosion from the defendant’s land.  Ultimately, complaint was settled without the plaintiff taking any action.  However, the next year the same landowner filed another complaint claiming similar damage.  This time the county soil conservation district investigated in accordance with state law and found that the soil loss on both adjoining farms exceeded the statutory limit.  The plaintiff ordered both landowners to remedy the situation within six months and gave them two options:  1) seed the land to permanent pasture or hay; or 2) terrace the land.  They did nothing, and the county soil conservation district sued to enforce its order.  It was undisputed that terracing would cost the defendant about $12,000 and the adjoining landowner approximately $1,500.  In addition, some of each landowner’s farmland would become untillable.  While seeding the ground to pasture or hay was less expansive, some of the farmland would be removed from crop production.  There was a dispute concerning whether either alternative would decrease the value of the land.  The defendant challenged the soil conservation statute under which the county soil conservation district acted as unconstitutional – it amounted to a taking of private property without just compensation as the Fifth Amendment required.  The defendant also claimed that the state law was an unreasonable and illegal exercise of the state’s “police power.”  

The trial court agreed with the defendant and struck the state statute down.  The law, the trial court said, placed an unreasonable burden on the defendant that was unduly oppressive and deprived them of their rights under the Fifth and Fourteenth Amendments of the U.S. Constitution and comparable provisions of state law. 

On appeal, the Iowa Supreme Court reversed.  The Supreme Court noted that the state had a vital interest in protecting its soil “as the greatest of natural resources” and that it has a right to do so based on the declared purpose of the statute at issue.  Under that language, it is the duty of each landowner to establish and maintain soil and water conservation practices or erosion control practices, in accordance with soil conservation district regulations.  Ultimately, the Supreme Court determined that the sate law was reasonably related to carrying out its announced purpose of soil control, and that control of soil erosion was a proper exercise of the state’s police power.  The Supreme Court also noted that the state was willing to cost-share with the landowners to the tune of about three-fourths of the total bill.  The Supreme Court said that the fact that a person must incur substantial expenditures to comply with valid regulations did not raise a constitutional issue.  The defendants still had the use and enjoyment of their property.     

The Iowa Supreme Court's opinion in Ortner upheld the neighbor's private property right to be free from damage caused by an adjacent farm's excessive water and soil erosion. In essence, the state can enact legislation to prevent a nuisance resulting from excessive soil and water erosion. 

Recent Case

In Brown v. United States, No. 18-801L, 2019 U.S. Claims LEXIS 231 (Fed. Cl. Mar. 15, 2019), the plaintiff operated a sod farm on land the plaintiff owned in Oklahoma along a river.  The river is south of a lake.  In 1974, the federal government completed the lake dam, which has a spillway that releases water when it floods. The spillway discharges water and sediment downstream, directly across from plaintiff’s property. Since 1986 (the first use of the spillway) the spillway has been used 17 times. In 1990 the plaintiffs first complained of the water from the spillway eroding their property where they operate a sod farm. The plaintiff contacted the U.S. Army Corps of Engineers (COE) in 2003, 2004, 2007, 2008, 2009, 2011, 2015, and 2016 concerning the erosion. The COE continually maintained that it "will not—and cannot—mitigate the erosion," explaining that "there is no program that authorizes the “COE” to directly address the [plaintiff’s] situation.”

In 2015, the erosion rendered the plaintiff’s center pivot inoperable. The plaintiff spent approximately $10,000 on new irrigation equipment to continue business operations and approximately $15,000 on riprap to prevent further erosion. In 2018, the plaintiff filed sued, claiming that over eight acres of the plaintiff’s land had been lost due to erosion from the water released from the spillway.  The plaintiff sought compensation under the Fifth Amendment as a compensable taking of their property.

The Government moved to dismiss this claim, but the court denied the motion on the basis that the “continuing claims” doctrine applied.  Under that doctrine, the court concluded, each release of water through the spillway constituted a discreet takings claim. The Government claimed that the court lacked subject matter jurisdiction on the basis that the plaintiffs’ claim was barred by the statute of limitations as it accrued in 1990 when the plaintiffs first noticed the erosion. However, the plaintiffs asserted that the statute of limitations did not begin to run until 2015 when their operation had to be altered because of the erosion. Further, the plaintiffs asserted that the “continuing claims” doctrine should extend their claim because each use of the auxiliary spillway constituted a new breach of duty by the Government.

The court agreed with the plaintiff, and also pointed out that erosion-type takings involve an act of “taking” that occurs over a long period of time. Thus, the statute of limitations does not begin to run until the situation “stabilizes.” Ultimately, the court held that the record had not been developed sufficiently for the court to determine when the erosion stabilized. Hence, the Government’s motion to dismiss was denied for further development of the record. 



Soil erosion issues loom large in agriculture.  Sometimes, the Constitution gets involved in the mix.  When it does, some interesting issues are involved. 


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