Monday, July 27, 2015
Here is an interesting case from Missouri:
In Rodgers v. Vilsack, (E.D. Missouri July 23, 2015), a participant in the federal Wetlands Reserve Program challenged the United States' decision to fine him for conservation easement violations.
The Wetlands Reserve Program, a Department of Agriculture program administered by the Natural Resources Conservation Services (NRCS) in conjunction with state and local agencies, pays landowners to encumber their land with conservation easements with the goal of protecting and enhancing wetlands. Rodgers owns land that was formerly strip mined 3500 of the 6200 acres). In 1998, he received $1,119,00 for a conservation easement held by the United States. Although not a WRP expert, it is my understanding that sometimes the NRCS tells the landowners what restoration projects to undertake and sometimes the NRCS (or related state/local agency) actually does the restoration itself.
I don't have a copy of the conservation easement itself, but we can glean some facts from the opinion. Rodgers claims that the NRCS restoration projects were faulty. He asserts that there were significant design flaws and in attempt to improve the habitat and wetlands on his land, he both created some dams and cut down some trees. NRCS fined him for both of these activities as being prohibited by the conservation easement. Rodgers, appearing pro se, also stated that NRCS gave him permission to undertake these activities.
The United States brought a motion to dismiss for lack of jurisdiction because the United States has not waived its sovereign immunity for actions of this type. So many interesting things to think about here.
First, what kind of action is this? Rodgers brought it as a quiet title action because the United States has waived sovereign immunity for suits regarding land ownership under that statute.But is that right? What might be a better claim for an assertion that the federal conservation easement holder isn't upholding its part of the agreement? The court suggested that it could be a contract claim or perhaps something under the Administrative Procedure Act (which wouldn't get him the monetary damages he seeks) or maybe something like the Tucker Act. This is a question I have grappled with in theoretical musings before. What action can you take when the federal government is not complying with the conservation easement (note that this is a motion to dismiss so I am just assuming that the US has failed in some respect regarding wetlands restoration... probably pretty darn hard to show that). If we look at conservation easements as contracts, maybe we can think about it as whether each party has upheld its side of the deal -- a nice little mixing of property and contract law. But I also like the APA approach. To bring an APA challenge though, can we just look at the conservation easement itself? Would a failure to comply with a conservation easement be a law to apply and assess agency action? Would we need to look at the underlying law establishing the WRP and assess compliance with that? The WRP has no administrative review procedure (it appears Rodgers sought to appeal his fine with the agency but there wasn't any avenue for it).
Second, should we consider conservation easement disputes under the QTA? The plaintiff here chose to proceed with the Quiet Title Act suit, so let's look at that claim. A QTA case involves a challenge to who holds title to the property. No one actually disputes that Rodgers holds fee title to the land. What could possibly be disputed is the scope of the conservation easements. The 8th Circuit, however, has never addressed the question of whether the Quiet Title Act includes disputes regarding the scope and terms of nonpossessory property rights (there is a circuit split on this issue with the 9th Circuit saying yes and the 6th saying no). This is why I was a little surprised when the court stated that it need not address that issue while at the same time examining the terms of the conservation easement. It seemed a little sneaky to me that we could say we don't need to settle the question about the scope of the statute because the terms of the conservation easement are clear. The court held that because Rodgers' actions (building dams and cutting trees) are specifically prohibited by the conservation easement, there is no possible action here. Basically, the court examined the WRP easement and find that the United States had not violated any obligation while Rodgers did, so therefore Rodgers had no claim. Kind of a weird approach in my book to say that we don't need to decide whether the Quiet Title Act would cover a scope of easement claim because you wouldn't be able to win a claim of that sort anyway.
Third, what is the scope of obligation that a conservation easement holder has? We just don't see cases where the landowner is arguing that the holder has failed to uphold its end of the bargain. Indeed, Rodgers would not have brought suit himself if it weren't for the fact the the government fined him when he supposedly tried to improve the environmental conditions of his land. I always assumed that the tricky cases would be against landowners or where third parties tried to sue holders for non-enforcement. But particularly as we see more conservation easements incorporating affirmative duties for restoration, land management, protection, etc., we pay see a growth in such disputes. For the most part, conservation easements speak of holders as having rights not obligations suggesting that an enforcement action against a holder will be a tricky one to win -- add sovereign immunity for government holders and it gets even more complicated.