JurisdictionUnited States
Western Land Use Regulation and Mined Land Reclamation
(Nov 1979)


Herbert S. Sanger Jr.
Tennessee Valley Authority
Knoxville, Tennessee


The writer wishes to acknowledge the assistance in preparing this paper of Douglas R. Nichols, Staff Attorney, Tennessee Valley Authority.




The Police Power

The Inherent Police Power of a State

Due Process

Equal Protection and Other Constitutional Rights

Delegation of Police Powers to Local Governments

Federal Powers

Commerce Power

Federal Lands

Indian Lands

Concluding Remarks



The subject of this particular institute—land use regulation and mined land reclamation—is in character with the times. The continuing fuel crisis, largely caused by our Nation's dependence on foreign oil, requires strong action to develop a greater degree of self-sufficiency in our energy supplies. But we should not delude ourselves into thinking that America can produce its way out of the energy crisis. To be sure, energy sources are available and must be utilized. But the joyride on cheap energy is over.

Conservation is our cheapest and quickest source of energy. By this I mean more efficient use of present energy supplies through such measures as increased insulation to reduce heating costs and smaller and more fuel efficient motor vehicles. We must also emphasize increased use of solar energy to supplement present sources of energy. While these efforts are necessary, it is obvious that they will not, by themselves, carry the day. We will have to increase the extraction of energy source materials to achieve full employment, improve our economic plight, and to maintain and improve the quality of life for all Americans. But our civilization will lose its roots in nature, and perhaps its life, if we fail to protect the basic air, water, and land resources that sustain life—indeed, the resources which make life worth living. Laws regulating land use and reclamation are essential tools to ensure that the dual goals of increased mineral production and protection of our environment can be achieved in harmony.

The result is that we have been inundated in recent years with land use regulations enacted by Federal, state, county, and municipal governments. Because others on the program will discuss the various land use laws more specifically, I will not attempt here to list them all. But it may serve some purpose to list a few of the laws which either directly or indirectly regulate land use. For example, the Federal Government has enacted the Uranium Mill Tailings Radiation

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Control Act of 1978,1 the Wilderness Act of 1968,2 the Surface Mining Control and Reclamation Act of 1977,3 the Endangered Species Act of 1973,4 and the all encompassing National Environmental Policy Act of 1969.5 Even the Clean Air Act6 and the Federal Water Pollution Control Act7 have the effect of indirectly regulating land use.

To laws regulating the use of federally owned lands, such as the Taylor Grazing Act,8 the Stock-Raising Homestead Act,9 the Forest and Rangeland Renewable Resources Planning Act of 1974,10 the Pickett Act,11 the Mineral Lands Leasing Act of 1920,12 the Multiple-Use Sustained-Yield Act of 1960,13 and the anachronistic Mining Law of 1872,14 the Congress has now added the Federal Land Policy and Management Act of 1976,15 the National Forest Management Act of 1976,16 and the Public Rangelands Improvement Act of 1978.17 The states are also enacting land use laws

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such as the sweeping Wyoming Environmental Quality Act,18 the Wyoming Conservation Districts Law,19 and the New Mexico Environmental Improvement Act.20

Because general land use laws do not reach all of the issues of land resource allocation and use, many local governments have also found it desirable to enact land use and zoning ordinances to regulate mineral exploration and mining and to impose reclamation requirements.21

The rush over the last several years by all levels of government to enact laws to harmonize mineral extraction with long term protection of the environment demands an increased awareness of the constitutional framework in which the various levels of government must work.22


The Inherent Police Power of the State

Under the United States Constitution the Federal Government is a government of enumerated powers. Broad though these enumerated powers may be it has been recognized from the early days of our Nation that "the

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enumeration presupposes something not enumerated."23 The powers not enumerated have consistently been held by the Supreme Court to be powers inherent in government to promote the general welfare,24 which under the Tenth Amendment of the Constitution, "are reserved to the States respectively, or to the people." These inherent powers are referred to generally as the "police power." Because the police power of the states consists of those inherent powers not given to the Federal Government and not unlawfully infringing on the rights of the people, it is the limitations on the state's police power which describe it. There are no clearly definable limits to the police power. Justice Holmes once observed that

It sometimes is difficult to fix boundary stones between the private right of property and the police power.... But it is recognized that the State as quasi-sovereign and representative of the interests of the public has a standing in court to protect the atmosphere, the water and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately concerned.25

The police power is one of the least limitable governmental powers.26 Its contours are revealed best by looking at the results of jurisdictional conflicts involving the legislative powers of the states. The following reviews police power conflicts, first with the rights of the people, and second with the enumerated powers of the Federal Government.

Due Process

Perhaps the most important limitation on the state's police power is the Fourteenth Amendment's command that the state may not "deprive any person

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of life, liberty or property, without due process of law."27 It must be emphasized, however, as was done by the 1938 Wyoming Supreme Court in State v. Langley,28 that the Due Process Clause does not state that "no person shall be deprived of life, liberty or property," but states that no person shall be deprived thereof "without due process of law."

The basic rights to life, liberty, and property are subject to such reasonable conditions as the state finds are essential to the safety, health, peace, good order, and general welfare of the community.29 Such limitations on the basic rights are necessary so as not to impair the equal enjoyment of such rights by others. The roots of the police power are formed in the maxim sic utere tuo ut alienum non laedas— "one must use his own property so as not to injure that of another."30 In West Coast Hotel v. Parrish, Chief Justice Hughes said:

[The Constitution] speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty....But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.31

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The state's police power is therefore limited in relation to the basic rights of the people by the constitutional protection of due process. Due process requires that (a) regulation under the police power cannot be unreasonable, arbitrary, or capricious, and (b) the regulation must bear a rational relation to a proper legislative objective.32 A presumption of reasonableness attaches to regulations aimed at safety, health, peace, good order, or general welfare of the community.33

The concept of "general welfare of the community" is broad and inclusive.34 Land use restrictions and controls will be upheld even to enhance the quality of life by preserving the character and desirable aesthetic features of a city.35 There can be little doubt then that reasonable regulations concerning land use and reclamation will be upheld under these basic due process tests. But the Fourteenth Amendment restrictions on the states' police power do not end here.

The Fourteenth Amendment also incorporates the protections of the Fifth Amendment which, among other things, prohibits the taking of private property "for public use, without just compensation."36 The incorporation of these Fifth Amendment rights into the Fourteenth Amendment operates as a further restriction on the police power of the states. The question of just how far the police power can restrict property rights without compensating the owner is an extremely controversial

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matter and has been the subject of numerous law review articles.37 A long line of Supreme Court cases establish that the facts of substantial economic loss and significant diminution in value alone do not establish compensable takings.38 Government hardly could go on if it could not execute programs that adversely affect property values without paying for every such change.39 However, where regulation would render property "wholly useless, the rights of property would prevail over the public interest, and the police power would fail."40

The Supreme Court has held, in a wide variety of settings, that an otherwise valid regulation which deprives property of its most beneficial use does not...

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