10propertyrights.pdf

the

Land

Owners Downstream

Jennifer

L.

Davis

From

theair,youcan see thedeadcreek longbeforeyouseewhatkilledit.Forsevenmiles,

thewaterrunsasgreenaslimeJell-O, andthe treesoneither side aredead.Followthetrail

upstream, and there'sthe suspect: arow offlat grayhog houses

owned

by J

&

H

Milling.

Nearthewater'sedge isthe spotwheretwin pipes

pumped

theraw sewage of12,000 hogs directly into Middle

Swamp

[aNeuse Rivertributary]. The pumping went on for 14years

untilthecreek suffocatedin waist-deepsludge.1

No

Iorth Carolina has a

hog

farm problem.

As

the

hog farm industry

grows

inNorth Carolina,2

so do

the environmental disasters that

accompany

it. This

paper will

examine

the environmental dangers that the

hog

farm industryhas posedto

North

Carolina's

rivers and streams

and

the failure

of

the state to

adequately prevent those

harms

from

occurring.3

Then,thispaperwilladdress generallegalprotections

against regulation

by

state and federal legislatures, includinga discussion ofthe U.S.

Supreme

Court's

regulatory takings analysis

and

the increasing

popularity of "takings bills" in state and federal legislatures.4 Specifically, this paperwillreview a

"takingsbill"being considered

by

the

North

Carolina

General

Assembly

that

would compensate

a private

property

owner

for

any

diminution in value ofher landcaused

by

a state regulation.5

At

the

same

time, the

Assembly was

considering

more

stringent

regulationof

hog

farms.Finally,thispaperwillargue

that a takings bill inNorthCarolina

would

not only detrimentallyaffecttheextent to

which

thestatecould

regulate

hog

farmsthatpollutethe state's riversand

streams, but

would

also beunfairtothelandowners

who

live

downstream

from those

hog

farmers and

who

are deniedbeneficial use oftheir landbecause

of the state'sfailure to regulate.6

Jennifer

Davis

is

a

thirdyear lawstudentat

UNC-ChapelHill

from

Charlotte,N.C. Shecurrentlyserves

as

Managing

Editorfor the

North

Carolina

Law

Review.

The

Problem

WasteSpills, Intentional

Dumping,

and

FishKills

Since 1989, the swine production industry has

quadrupledinNorthCarolina,making NorthCarolina thenation'ssecondlargest

hog

producerafterIowa.7

In June of1995, an overfilled sewage lagoon and a

rain-soaked dikeat

Oceanview Farm

Ltd.,an

Onslow

County

hog

farm, caused a

dam

to break,

dumping

22 million gallons of pure

hog

waste intothe

New

River.8

_The

North

Carolina

Department

of

Environment, Health,

and

NaturalResourcesplaced

blame

forthe spill squarely onthe shoulders ofthe

farm operators.

The

operators had failed to plant

enough

cropstotakeupthewastethefarmgenerated,

had

letthe liquid levelinthe 25-milliongallonwaste lagoon rise to the point

of

overflowing,

and

had

installed irrigationpipesinthe sideofthelagoon(the eventual site ofthe breach that caused the spill)

withoutconsulting

any

engineers.9 _After

thespill, a

systematic survey of

hog

farm operations inNorth Carolina ordered

by Governor

Jim

Hunt

found "60

farmers

who

weredeliberately

dumping

animal waste

intostreamsthroughpipes orditches . . . [and] fifty

other farms . . . discharging sewage inadvertently

through leaks or overflows from waste lagoons."10

One

commentator

charged thatthe spills

were

"the

predictable results of an impotent regulatory and enforcement process . . . [and] the contemptuous

indifference with

which

our state

government

has

explosivehog-farm development."11

These recent waste spills into

North

Carolina

rivers and

swamps

have caused fish to die

by

the millions.12 Riverslikethe

Neuse

and

Cape

Fearhave

become

overloaded with nitrogen

and

phosphorus, elementsthat cause a cycle ofalgae infestation and oxygendepletion during

which

fish suffocate.13

Eachday, trainloads ofnutrientsarrive fromthe

Midwestintheform offeed grainsfor livestock.

The

com

and soybeansarefedtopigsandpoultry, and a little ofthe nitrogen and phosphorus is absorbedinto the animals bodies.

The

bulkofit

isexcretedasanimalwaste.Intheswineindustry alone, the 8 million hogs in the state's eastern

counties produce, conservatively, 10 billion pounds ofmanure a year, which includesabout

70millionpounds ofnitrogen.14

When

thisanimal

manure

spillsintoriversitjoins

nitrogen already present in the rivers from ground and ditch seepage of animal waste. Additionally,

ammonia

gas addsnitrogen inrivers

and

streams as it rises intothe air from

hog

barns

and

lagoons and

returns to the earth in rainfall.15

The

nitrogen and

phosphorus causeinordinate

amounts of

algaeto

grow

on riversurfaces.

When

thealgaedies, itsinkstothe

bottom ofthe river,

where

it is

decomposed

by

bacteriainaprocessthat

consumes

oxygen.''Unless the water is

mixed

or recirculated

somehow,

the

oxygeneventuallywillrunout,"causing massivefish

kills.16

One

discouraged environmentalist recently

jested that he had "seen catfish crawling out ofthe water"

when

commenting

on millions ofdead eels, bream, bass and other fish that lined the

Cape

Fear

Riverlast

summer.

17

North Carolina'sRegulation of

Hog

Farms

interestonthe localboardsthatadministerthefunds

and

frequently

award

large

sums

of

money

to themselves.19

Prior to last

summer's

spills, swine industry

owners

hadbluntedalmost everyeffort intheNorth

Carolina General

Assembly

to better regulate

hog

farms.20

Even

NorthCarolina's nuisance laws

make

itextremelydifficult forprivate property ownersto

maintain a nuisancesuitagainsthogfarmers.21

Early last

summer,

however, itappeared thatthetide

was

turning.

Governor Hunt

issued strong statements to stateswinefarmersthattheyshould"shapeuporship out."22

Not

only

was

the

Governor

instrumental in

getting theNorthCarolinaDivision ofEnvironmental

Management

to strengthen its plans for reducing

pollution in the

Neuse

river, but he

was

also the

impetus

behind a

Blue

Ribbon Commission

on

Agricultural

Waste

whose

findings are due before

next

month's

regular session of the

General

Assembly.23

The

group is considering the results of

several studies it

commissioned

and is reviewing

stricterregulation proposals for theswine industry,

including strict licensing procedures,

mandatory

testing of lagoons and lagoon liners,

emergency

spillways in all lagoons, and prohibitions on

hog

farmingin sensitivewatersheds.24

The

commitment

Government

Hunt

and

many

North Carolina

legislators have

shown

to regulating

hog

farms in ordertopromotetheenvironmentalwelfare ofNorth

Carolina's rivers, streams,

and

drinking water is a

decided shift

away

from

North

Carolina's former

publicpolicy.25

However,

iftheregulationsthatarise

from

the

upcoming

full session of the General Assembly,sparkedbythefindingsoftheBlueRibbon

Commission,

are stringentenough,

many hog

farmers

will likely complain that the state

government

is

interferingwiththeirpropertyrightsandtheirdistinct

investment-backedexpectations.

North Carolina has relied heavily overthe past severalyears on avoluntary approach topreventing

the flood ofwaste intoNorth Carolina's rivers.

The

NorthCarolina AgricultureCost-ShareProgram

was

begun inthe mid-1980's to assist farmers inpaying

for projects that prevent waste from enteringNorth

Carolina's streams.

"Growers

may

be reimbursed up

to$15,000overthreeyearsforprojects suchas

grass-strip borders around fields or better animal-waste

disposalsystems."18 _However,

thestatecan

document

no

improvements

in water quality

from

the

$56

millionithas spentontheprogram.Also,

many

critics ofthe volunteersystem complain aboutconflicts of

LikelyFailure intheFuturetoRegulate

Hog

Farms

As

onecritic hasnoted "it

would

be difficultto

imagine a regulation ofhog farms that could be so stringent as to affect a takings of property,"26

compensable

under

the

Supreme

Court's

interpretationofthe Fifth

Amendment

oftheUnited

States Constitution.

However,

in the past decade

courts and legislatures

have

slowly

been

moving

towardsgreaterprotection ofprivatepropertyrights

inthe faceofagrowingregulatorystate.27 This trend

could havean adverse effect

on

the extent to which

regulate

one

of the state's biggest industries.28

Already, the

Blue Ribbon

Commission

has been

criticized for

moving

tooslowlyand

many

criticsfear the

Commission's

proposals will not

be

stringent

enough.

29 _Activists

question

why

no

environ-mentalists

were

chosen toserveonthe

Blue

Ribbon

Commission which

willpropose

new

regulationsfor the

hog

farmindustry. Infact,fiveof the 18

members

on the

Commission

currentlyraisehogs, whileeight

others havetiesto the swineindustry.30 In response tocriticisms regardingthe failureofthe

Commission

to include environmentalists,

Co-Chairman

ofthe

Commission

U.S. Representative

Tim

Valentinesaid,

"What

theheck

—

Ithink

of

myself

as an

environmentalist."31

Legal

Protection

Against

Regulation

Many

criticsnote the existence ofa changing and reactionary judicial

and

legislative

com-mitmenttotheprotection ofprivatepropertyrights

in response to

growing

governmentalregulation of

environmental

dan-gers likethose posed

by

North

Carolina's

hog farm

industry.

As

one

commentator

noted, "[o]ver the last

two

decadesthe

growth ofthis country's environmental regulatory

regime has

been

nothing short of astonishing. It

accountsfor

many

ofthe regulationscoveringalmost every aspect ofour lives,

which

grow

by

200 pages

each day in the Federal Register."32

Horror

stories byprivateproperty

owners

whose

propertyhasbeen

devaluedor

condemned

by environmentalregulations

abound

in the rhetoric ofthe heated debateoverthe

contradictory interests of environmentalists and

property owners.33

Representative Billy Tauzin of Louisiana, in a

vehement

speech

on

the

"overzealousness" of regulatory officials, recently

stated:

"Something

is fundamentally

wrong

in our country

when

arat's

home

is

more

importantthanan

American's

home. At

the ratewe're going, itwon't

be long before we're forced to add people to the

EndangeredSpeciesList."34

Even

federaljudgeshave entered the public debate. U.S. Claims Court Chief Judge Loren Smithrecentlystatedpubliclythat"the

takings clause

was

meant

to provide a check

on

governmentregulatoryprograms."35

Recentvictories for privatepropertyownersattheU.S.

Supreme

Court

in Fifth

Amendment

regulatory takings claims and

the growingpopularity oflegislative protections of

private propertyowners have

combined

to

make

for

"headytimesfor thechampions ofprivateproperty."36

RegulatoryTakings

Law

and

theFifth

Amendment

The

Fifth

Amendment

of the U.S. Constitution states: "norshallprivatepropertybe takenforpublic

use withoutjust compensation."37 Since 1922, this

clause has

been

interpreted to apply to certain regulatory actions

ofthe

government

thatgo "too far."38 In

Pennsylvania

Coal

v.

Mahon,

the

United States

Sup-reme

Court

recog-nized that a gov-ernment restriction

or regulation could

deny

an

owner

of

distinct property

rightssuch thatthe

government

would

be

required to

compensate

the

owner

for "inverse

condemnation" or a "regulatorytaking." Thus, the

Courthas expressed thatthe Takings Clause serves "to bar

government from

forcing

some

peoplealone

to bear public burdens which, in all fairness and

justice,shouldbe borne

by

thepublicasa whole."39 Sincethisrecognition, "theriversofinkspilledand

forestsoftrees felled in the effortto understandthe

fieldofregulatorytakings[hasbecome]legendary."40

The

Supreme

Courthaschosenanessentially

ad

hoc proceduretodetermineifa regulatory takinghas occurred.Historically,theCourthasconcerneditself withthreefactors,whichitdelineatedin

Penn

Central Transportation Co. v.

New

YorkCity,i[ inreviewing

aregulatory takings claim: (1)the

economic

impact

ofthe regulation on the property owner, (2) the regulation's effect on distinct investment-backed expectations,

and

(3) the character of the

governmental action.42 If a governmentregulation interferestoogreatlywiththeeconomic valueofthe

property or with the expectations the

owner

had in purchasingthe property, orifthegovernment'saction significantly interfereswith anowner'srightstouse

The

Court

has expressed

that

the

Takings

Clause

serves

"to

bar

government

from

forcing

some

people alone

to

bear

public

burdens

which,

in

all

fairness

and

justice,

should

be

his property, then the Court is

more

likely to find that the

government

must

compensatethe owner.43

The

Courthasalsocreatedtwodiscretecategories

of regulatory takings claims that

do

not require an analysis of the three factors delineated in

Penn

Central. InLorettov. Teleprompter

Manhattan

CATV

Corporation,** the

Court

held that

"permanent

physicaloccupationisagovernmentactionofsucha

unique characterthat it isatakingwithout regardto

other factors thatacourtmightordinarilyexamine."45

Thus,ifa

government

actioncausesanobject,inthis case a cable wire, to be permanently affixed to an

ownersland,thencompensationisrequired regardless

of

whether

a

dim-inution in value of

the

property

has

occurred

and

re-gardless

of

the degree to

which

the

property

can

rea-sonably

be

con-sidered to be

"oc-cupied."46

Similarly,

when

a regulation

deprivesan

owner

of

"all

economically

beneficial or

pro-ductive use"

of

her

property, then the

Courthasheldthata

per

se

government

takings has

oc-curred.47 In

Lucas

v.SouthCarolina Coastal Council,

the Court held that the government had taken

two

beachfront parcels

of

land

when

it

enacted

a

conservation statute that prohibited building on the

beach.48 "Itappears,however,thatininstancesofless than total deprivation of value, the multi-factored

analysis described in

Penn

Central still guides the courts."4"

_These

_{developments, coupled with U.S.}

Supreme

Court

decisions like

Dolan

v. City

of

Tigard5_"

and Nollan

v. California,51

have

given

champions ofprivate property rights several recent victoriestocelebrate.

Federal

and

State "TakingsBills"

The

electionof Republicanmajoritiesinboththe

Senateandthe

House

ofRepresentatives,"impelled

inpartbypublicpromisesbyparty leaderstoliveup

to the terms of the "Contract with America,' has dramaticallv increasedthechancesforcongressional

If

"any

diminution

in

value" of

private

property

would

trigger

mandated

governmental

compensation,

the existing

statutory

set-back

requirements

for

hog

farm

lagoons

and

barns

could

clear

out the

state

treasury

in

an

afternoon.

passageoflegislationprotectinglandowners fromthe

economic

effects ofa

wide

range of environmental andland-useregulations."52 Additionally,protective

legislation proposals

have

become

increasingly

popular in state legislatures

where

agricultural

lobbyists have

been

more

successful at convincing

state legislators

of

thefederal"regulatory excess."53

Several states

have

passed bills requiring state

governments to assessthe environmental impact of

their actions orto compensate land owners

when

a

regulation diminishesthe valueofprivate land

by

a certain specified percentage of its value.54

For example,atthe

same

time

North

Carolinalawmakers

areconsidering

more

stringent regulation

of

hog

farming

operations, they are

also considering a

"Property

Rights

Act" which, in the

words oftheact,will

"providefor

payment

of

compensation

to

an

owner

when

land-use regulation

by

a

governmental entity

causes an

economic

impact resulting in

anydiminutioninthe total

value of

the

owner's

land."55 This

proposed

act,

which

is still incommittee, is

modeled

afterseveral similarstate billsorproposedbillsthathave

become

increasinglypopularover thepast

few

years.56

PropertyRightsBillsusually

come

inoneof

two

forms.

They

are either

"assessment

bills" or

"compensation bills."57

Assessment

bills are those bills

which

require

"government

to assess takings implications (or property rights implications) ofits

proposed actions ina formal process."58

In the past three years,

more

than sixty assessment bills have been introducedatthestate level,often

modeled

after President

Reagan's

Executive

Order

No. 12,630

requiring federal agencies to

perform

a takings

analysisbeforeacting.59 Sixstates

have

enacted such

provisions.60 In support of these bills,

many

proponents

argue

that

assessment

of takings

implications

may

lessentheextent to

which

stateand

federalregulationsencroachonprivatepropertyrights

assessmentis"justanotherlayerofredtapetothwart agencies

from

regulating, no matter

how

great the publicneed."62

Compensationbills, ontheotherhand,arethose

bills that prescribe a "statutory standard for

compensatingpropertyowners once

agency

actionis taken" that causes a diminution in private properly

values.63

Five

compensation

bills have

been

successfully enacted at the state level.64 out of the fifteenproposedstatecompensationbills.65 Similarly,

the 104th Congress is considering a compensation bill atthe federal level as partofthe Contract

With

America.66 _These

billsusually definea "takings"as

an act which causes private property to decrease in value by a certain percentage, although

some

bills

have used

more

flexible standards.67 Proponents of

these bills argue that constitutional remedies for

takings are inadequate because pursuing a claim

againstthe

government

requires too

much

time and

money

andtakingsprecedentisextremelyunclear.68

Thus, "asingle,unvarying value-lossthresholdas a

compensation trigger

would

afford greatercertainty

to both

landowner and

government

agency."69

Detractorsfromthislegislationarguethat the"reality

isthatthestate simply cannotafford to

pay

offevery landowner for every land-use decision," and that

compensationbillsare arbitraryinthattheydisparage the rights of property

owners

who

just miss the threshold percentageto triggercompensation.70

Applications

ofa

Takings

Bills in

North

Carolina

On

a theoretical level, it is understandable that

takings bills

would have

some

popular support,

especially

when

thedebate iscouchedintermsofthe

competing interests ofanimals and

human

property

owners. But a takings bill in North Carolina could haveseveraldetrimental effectsonthestate'sability to regulate its environment and

on

the rights of

properly

owners

who

live near or

downstream from

hog

farmers. This section will demonstrate

why

passage oftheproposedPropertyRightsActinNorth

Carolinaisundesirable.Suchabill

would

tiethehands ofstatelegislators

who

wishtoprevent

hog

farmers

from

further

damaging

our state's ecosystem.

Additionally, the bill

would

prevent the state

from

protectinglandowners

who

are

harmed

by

the actsof

hog

farmers by not providing a

remedy

to property

owners

when

thestate'sfailuretoregulate has caused

a diminutionin valueoftheirproperty andby using valuation techniquesthatallowhog farmerstospread

the cost oftheir operationsto

downstream

property

owners.

The

Effect

of

TakingsBills

on

Needed

Regulation of

theStates'

Environment

In the earliestregulatory takings case beforethe

Supreme

Court, Justice

Holmes

argued

that

"[government

hardlycould

go

on ifto

some

extent values incidenttopropertycould not

be

diminished

without paying forevery . . . change in the general

law."71

In the case oftakings bills, it is clear that

government

could "hardly

go

on" regulating the

environment

if it

were

obligated to

compensate

owners

foralldiminutionsinvalueoflandcausedby

a regulation.

As

one

critic has argued, "[i]f the

government

labored under so severe

an

obligation,

there

would

be, to say the least,

much

less regulation."72

A

compensationbill liketheonebeing

proposed

in

North Carolina

would

leave state

government

officials with

one

of

two

options:

bankruptcy

or

minimal

regulation

of

the state's

environment. If"any diminutioninvalue" ofprivate

property

would

trigger

mandated

governmental

compensation,

the existing statutory set-back requirementsfor

hog

farm lagoonsand barns73

could clear out the statetreasury in an afternoon. Caught up in the rhetoric

of

"protecting property owners"

from

"arrogant bureaucratic environmentalists," supportersofthePropertyRights Act

have

failedto consider the practical implications of limiting the state's abilitytoprotectitsenvironment.

The

passage

of suchan

Act

would

leavethe quality

of

ourstate's

rivers and streamsin great peril.

No

Remedy

for Diminution in Value

for

Failure to

Regulate

Furthermore, supportersoftheAct

have

forgotten

about the property rights

of

the

owners

who

live

downstream from

hog

farm operators.

As

Professor

Joseph

Sax

recently noted:

Ithasneverbeenthelawthatoneownsproperty withoutanyobligationtowardthe public....It is theobligationof everyownertotrytofindways

toaccommodate theneeds, principlesandgoals ofthe community inwhichhe orshe lives. Itis the property owner's obligation to try to adapt usessothateconomic benefitsto the individual

ownerflow fromthoseuses,andatthesametime

as well as public health and safety can be

maintained.74

North Carolina's proposedtakings billdoes not allow property ownersto

demand

compensation for

government'sfailuretoregulate

when

thatfailurehas deprived

them

of anyenjoyableuse oftheir land. In that respect,

North

Carolina's proposed Property

RightsActprotectsthe rightsof

some

properlyowners

(those

whose

property is being regulated) at the

expense ofothers (those

whose

property is

harmed

bythe state'sfailuretoregulate).

Clearly, the Act forgets that property law does

more

than

"merely

protect

men

[sic] intheir possessions."75 Imagine

a society in

which

owners ofpropertywere not required to

ac-commodate

theneedsof

the

community.

Itwould

be a society with

no

zoninglaws,

no

nuisance laws, no limitations on water and air pollution,

and no

protection of endangeredspecies.This isthetypeofsocietythat takings bills envision,

and

practically

would

create, in the

name

of protecting a person's

right to possess properly. This vision departs from

our

most

traditionalunderstandingsofthe definition

ofproperty.

As

onecritic has explained, "property, in the historical view, did not represent the

autonomous

sphere ofthe individual to be asserted

against the collective; rather, it

embodied

and

reflectedtheinherent tensionbetweenthe individual

andthe collective."76 Thistensioncannotberesolved throughsimplistic, bright-line legislation.

The

proper

resolution ofthe tension must

come

after a careful

weighing ofthe rights ofindividual owners andthe rightsofthe

community

touseand enjoyland.

Spreadingthe Coststo Those Already

Harmed

The

manner

in which compensation

would

be

triggered

by

the proposed Act also fails to consider

"downstream

property owners."

The Act would

requirethestate tocompensate a landowner(in this case a

hog

farm operator)

when

"an appraisal . . .

indicates any diminution ofthe total value ofthe

property"

(the

hog

farm).77

_A

"market

value"

appraisalofaparcelofland,however,

would

not take

intoaccountthecostsof

harms

fromunregulated use

ofaparticularparcelof landthat

would

be spreadto

other land owners.

By

failing to incorporate these

externalities intothe"marketvalue,"the Act

would

compensate

hog

farm operators for

harming

the

property values of other landowners.

Hog

farmers

would

be free to pass the cost of operating an

agriculturaloperationina

manner

thatdoesnot

harm

other landowners to theveryowners

who

are being

harmed

under currentpractices.

A

"market

value"

appraisal

of

a

parcel

of

land

would

not

take

into

account

the

costs

of

harms

from

unregulated

use

of

a

particular

parcel

of

land

that

would

be

spread

to

other

land

owners.

Conclusions

Takings

bills are impractical

and

unfair.

The

North

Carolina

General

Assembly,

if it

were

to pass

such

legislation,

would

fail to

balance

the inherent

tensions ofthe rights of

property

owners

andthe

rights ofthe

community

as a whole.

The

proper

bodies to

perform

this

balancingofinterestsare the courts.

While

itistrue that the currentjudicial

procedure for resolving regulatory takings claimsisunpredictable:

[unpredictability

may

be desirable in asociety in which the governmental distribution ofgain

andlossinproperty valuesrequires controversial

policy choices. Courts

may

recognize that the political process is the preferred method for

making

these policy decisions. . . . [Current

judicial theoriesoftakings law] allowacourtto

invalidate land-use regulations it considers

unacceptable and to uphold these regulations

when

it is willing to accept the political policy

decisions.Thesepoliticalnecessitiessuggestthat

a reformationoftaking-clausetheorytoprovide

more

predictability

may

beunwise.78

Reformation oftakings lawisespecially unwise

when

takings bills foster predictability

by

so

arbitrarily

making

controversialpolicy decisionsthat

the rights of others.

North

Carolina's

proposed

Property Rights

Act

is

one

more

shameful

way

that

our state's public

policy would openly

favor

agricultural interests at the expense ofthe state's

environment.®

Editors'

Note

Thisarticle

was

written inApril, 1995. Late in

April, the Property Rights Act failed to pass the

General Assembly.

However,

it is likely that

new

takingsbillswillbe introduced inthe 1997 Session.

Endnotes

1

Joby Warrick,

A

Bumper CropofWaste,Raleigh.News

&

Observ.,Mar. 5, 1996,atA-l. 2

The hogfarmindustry inNorthCarolinahasquadrupled

insize inthe pastfiveyears.Id. at6A;see infra note 6 (notingthisphenomenon).

3

See infranotes 7-31 andaccompanyingtext. 4

Seeinfranotes32-71 and accompanyingtext.

5_See

infranotes56-57 and accompanyingtext.

6

Seeinfranotes72-79 and accompanyingtext.

7

JobyWarrick,

A

Bumper CropofWaste,RaleighNews

&

Observ., Mar.5, 1996,at6A.In 1989,NorthCarolina had2.3millionhogs statewideinhogfarms. In 1995,

that total reached8.3million.Id.

"_{Joby Warrick andJ.}Andrew_{Curliss,Managers Get Blame}

ForSpill,Raleigh.

News

&

Observ., July 25, 1995,at

Al. 9

Id.TheNorthCarolinaDepartmentofEnvironment,Health,

and Natural Resources reportstated that " 'the most

probablescenario'wasthatwastewateroverflowednear the pointwheretheirrigationpipewasinstalled.Once thewaterbegan spillingoverthe side,thesandysoil in

thelagoon'searthenwallseroded rapidly,allowingall

ofthesewageinthelagoontogush outinlessthan an

hour."Id.

10

JobyWarrick, StateFinds60 Farms

Dump

Waste,Raleigh

News

&

Observ., Sept. 15, 1995.atAl.

1 '

BillBroom,WasteSpills

Show

theSeedtoIncreaseState's Regulation of

Hog

Farms, GreensboroNews

&

Rec, Aug. 13,1995,atF3.

12

StuartLeavenworth,StateGoesSlowonNeuse,Raleigh

News

&

Observ.,Dec. 14, 1995,atAl

13 Id 14

Joby Warrick,

A

Bumper Crop of Waste,Raleigh.News

&

Observ., Mar.5, 1996,atA-l.

15

Id.

16

Randall Chase, Rain ThreatensLife in Neuse River, GreensboroNews

&

Rec., July8,1995,atB6.Recently,

a national environmental group, American Rivers,

namedtheNeuseRiver as"one ofthe nation's20 most threatened rivers"listingnitrogen andalgaeas"major

threatstotheriver'shealth."Id.

17

Randall Chase, Cape Fear River Basin in Danger, GreensboroNews

&

Rec.,Aug.25, 1995,atB3. 18

JobyWarrick,

A

BumperCropofWaste,RaleighNews

&

Observ.,Mar.5, 1996,atA-l. 19

Id,

20

Several bills were introduced between 1993-95 which

failed. See, e.g.,H.524,N.C.GeneralAssembly,Sess.

1996,draftofMarch22, 1995,at5-23 (ABillTo Be

Entitled

An

Act to Protect the Public Health by

Regulatingthe Management and Disposal ofAnimal Waste by Intensive

Hog

Operations); H. 845, N.C.

GeneralAssembly,Sess. 1996,draftofApril12,1995,

at 1-2 (an act proposing to declare that agricultural operations that continuallyviolateenvironmental laws

arenuisances); S.394,N.C. General Assembly, Sess.

1996, draft of March, 1995, at 1-2 (proposing to eliminate the exemption ofbonafide farms fromthe

county zoningenablingact).Oneoftheonlyregulations

thathas passed theGeneral Assembly is aweak set-backregulation with no enforcementmechanismthat

requiresswine farmsorlagoonstobesitedatleast1,500

feet from any occupied residen, 2,500 feet fromany school, hospital, or church, and 100 feet from any property boundary.N.C.Gen.Stat.§ 106-803(1995).

21

See, e.g.,N.C. Gen.Stat. § 106-700(1979),stating:

Itisthedeclaredpolicyofthe State toconserveand protect and encourage the development and

improvement ofits agricultural land for the productionoffoodandotheragriculturalproducts.

When

nonagricultural land uses extend into agricultural areas, agricultural operations often becomethe subjectofnuisancesuits. Asaresult,

agriculturaloperationsaresometimesforcedtocease operations. ... It isthe purposeofthisArticleto

reduce the loss to the State ofits agricultural resourcesbylimitingthecircumstances underwhich

agricultural operations may be deemed to be a nuisance.

Id. The act, for example, declares thatan agricultural

operationcannot bethesubjectof a nuisancesuitwhen

anentity "movesto" the agricultural area.N.C. Gen.

Stat. § 106-701 (1979). Priortothe enactmentofthis

provision,NorthCarolinacourtswerealso reluctantto

allow nuisancesuitsagainstagriculturaloperations.See, e.g.,

Moody

v.Packing Co., 7N.C.App.463,465, 172 S.E.2d 905,907(1970)(holdingthatthe "operationof ahogbuying stationisnot a nuisanceperse"andthat

"courts are reluctant to enjoin the operation of a legitimatebusinessenterprise").

22

1995,atAl.

23

A Governor's Greening,RaleighNews

&

Observ.,Feb.

13, 1996, at A-10; see also, H. 524. N.C. General

Assembly, Sess. 1996, March 22, 1995, at2 (the bill

creating the Blue Ribbon Study Commission on

AgriculturalWaste). 24_{Shannon Buggs,}

EnvironmentalistsPitch Their

Hog

Plan, Raleigh News

&

Observ., Mar. 1, 1996, at A3; Estes

Thompson, Summit Seeks Answers to

Hog

Waste

Problems,GreensboroNews

&

Rec, March2, 1996,at B2; JobyWarrick,

Hog

StudyUrgesStronger Rulesfor

WasteLagoons,RaleighNews

&

Observ.,Feb.8,1996,

atA3;

Hog

FarmRegulations Suggested.Greensboro

News

&

Rec,March 1, 1996,at B2.

25

Seesupranotes 18-21 andaccompanyingtext.

26

Personalinterviewwith Richard Ducker,March25, 1996.

27

Seeinfranotes 32-57andaccompanyingtext.

28

Seeinfranotes 72-74andaccompanyingtext.

29

SeeHuntCriticalof

Hog

Panel,RaleighNews

&

Observ.,

Feb. 3, 1996, atA-3. 30

Joby Warrick,

Hog

HearingsOpenwithPraiseforPork, CriticsPanStudyPanel'sIndustryTies,RaleighNews

&

Observ.,Oct. 12, 1995,atAl. 31

Id

52_Nancie

Marzulla,State PrivatePropertyRightsInitiatives

asaResponseto "EnvironmentalTakings",46S.C.L.

Rev.613,614(1995).

53

Michael Allan Wolf, Overtaking theFifthAmendment: TheLegislativeBacklashAgainst Environmentalism,6

Fordham Env.L.J.637, 637(1995). Wolfarguesthat "manyofthemost prominentlegislativechampionsof

expanded private property rights have, somewhat

recklessly, targeted federal endangered species

regulations as particularly unjustifiable and

unnecessary."Id. at640. 34

W.J. Tauzin, 'IfYou TakeIt, Pay ForIt,': Something's

Wrong

When

aRat's

Home

isMoreImportant than an

American'sHome,Roll Call,July 25, 1994, available

inLEXIS,Nexislibrary,

CURNWS

File.

35

MarianneLavelle,EnvironmentalistsFret as StatesPass Reagan-Style TakingsLaws,Nat'lL.J.,

May

10, 1993.

3"_{Wolf,supranote33,at637.} 37

U.S. Const.,Amend.V. 38

Pennsylvania Coal

Company

v. Mahon, 260 U.S. 393, 415(1922).

39

Nollanv. California,483 U.S. 827, 835-36 n.4 (quoting Armstrongv. UnitedStates,364U.S.40,49(I960)).

40

Wolf,supranote33,at637n.14 (1995).

41

438U.S. 104(1978). 42

Id. at 124-25. 43

Id.

44₄₅₈

U.S. 419(1982)

45

Id. at432.

46

Id. at426-439.

47

Lucasv.SouthCarolinaCoastalCouncil, 112S.Ct.2886, 2893(1992).

48

Id.at2889.AlthoughtheDistrictCourt foundthatLucas

had been deprived ofalloftheeconomicvalue ofhis

property, several Justiceswereskepticalofthisfinding.

see, e.g.,id. at 2908 (Blackmun,J. dissenting) ("This findingisalmostcertainlyerroneous.");id at2919n.3

(Stevens, J., dissenting) ("[H]is land is far from

'valueless.'");id.at2925(Souter,J.,dissenting) ("[T]he trialcourt'sconclusionishighly questionable); see also

RecentLegislation, 108 Harv.L. Rev. 519, 524 n. 19 (notingthissame phenomenon).

40

JamesD.Smith, PrivateProperty ProtectionLegislation andOriginal Understandings ofthe Takings Clause:

Can They Co-Exist?, 21 J. Legis. 93, 97 (1995); see alsoLucas, 112 S.Ct. atn.8 ("[T]helandownerwhose

deprivationisonestepshortofcompleteis. . .entitled

to compensation. Such a owner might not be ableto

claim the benefitof ourcategoricalformulation,but, as wehaveacknowledgedtime andagain,'[t]heeconomic

impact ofthe regulation onthe claimant and ... the extentto which theregulation interferedwithdistinct

investment-backedexpectations' arekeenlyrelevantto

takings analysis generally.")

50

114 S. Ct. 2309 (1994) (chastising city governmental

officialsforanuncompensatedtakingofpropertywhen

theunconstitutionaldevelopmentconditionsplacedon

a commercial landowner were not "roughly proportional" to the city's goals oftraffic regulation

andfloodplain protection).

51

483 U.S. 827 (1987)(findingthattheCaliforniaCoastal

Commission had unconstitutionally taken beachfront property by conditioning a building permit on the

conveyance ofa public easement). In Nollan, theCourt

noted that "unless a permit condition serves [a

"legitimatestateinterest"], ... [a] buildingrestriction

isnotavalidregulationoflandusebut'anout-and-out

planofextortion.' "Id. at 837.

52

Id. at638.

53

Lavelle,supra note35.

54 _See

infranotes 58-71 andaccompanyingtext.

55

H.597,N.C. GeneralAssembly,Sess. 1995,draftofMarch

28, 1995,at 1 (emphasisadded).'

56

See Recent Legislation, Land-Use Regulation

—

Compensation Statutes, 109 Harv. L. Rev. 542, 543

(1995).

57

Id at633-35. 58

RobertMeltz,Property RightsLegislation:Analysisand

Update,24

ALI-ABA

17,20-21 (1996).

59

Marzulla,supranote 32,at635.

60

(mandatingthatnostateregulationmaytakeeffect until

thestateAttorney Generalhasinformedthestateagency whether its action may result in a takings); Montana

CodeAnn. §§75-1-102, 103,201(1995) (declaringstate

policy to protectrights to use property free ofundue

regulation and requiring environmental impact statements astoregulatoryimpactsonprivateproperty);

Tenn. Code. Ann. §§ 12-1-201to203 (1995)(requiring state Attorney General to review and identify governmental actions that

may

effect a takings and

prohibitregulationsthatdoeffecttakings);Utah Code

Ann. §§63-90-1to 4,63-90a-l to4 (1995) (mandating

takingsimpact assessments from stateagencies).

61

Marzulla,supranote 32,at 164.

62

Meltz,supra note59, at20.

63

Id. at22.

64

See Recent Legislation, supra note 57. at 543 ("In the pastyear, five state legislatures have passed laws to protect individual property rights bycreating a cause

ofaction for landowners to obtain compensation or equitable reliefwhen the fair market value oftheir

property is significantly diminished as a result of government regulation.") The five states are Florida

(Fla. Laws ch.95-181 §§ 1-3 (1995)); Louisiana(La.

Rev. Stat. Ann. §§ 3: 3601, 3602, 3608, 3612, 3621,

3624(1995)); Mississippi (Miss.CodeAnn.§§ 49-22-1 to -19(Supp. 1995); Texas (Tex.Gov'tCodeAnn.

ch.517§2007(1995));andWashington (Wash.Legis. Serv. 261 (West) (repealed by referendum, Nov. 7,

1995).

65

The 15 states in which compensation bills have been introduced are California,Delaware,Florida, Georgia, Iowa,Kentucky, Mississippi,

New

Hampshire,

New

York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, and Washington. Marzulla, supra note32,at635 n.135.

r'6

TheprimarybillsunderconsiderationinCongressareH.R. 925, 104th Cong., 1stSess. (1995)which passed the HouseofRepresentativesonMarch3,1995,and S.605,

104thCong.,1stSess.(1995)whichisSenateMajority

LeaderBob Dole"scompaniontotheHousebill.Fora discussion ofbothbills, seePayson R. Peabody, Will the 104th Congress Revolutionize FifthAmendment

Takings Law?:

An

Analysis ofthe Private Property-ProtectionAct of 1995, 5Fed.Cir.B.J. 199,203-206 (1995); see also James D. Smith, Private Property Protection LegislationandOriginalUnderstandingof the Takings Clause: Can TheyCo-Exist? 21 J. Legis. 93, 103-109 (1995) (examining whether legislative "attempts to protect private propertycomportwithand

furtherour commonly held notions ofproperty while

not unduly burdening government efforts to provide

coherentguidanceforregulatory agencies.").

1,7

Thebillproposedin Congress,forexample,requiresthe

federalgovernmenttocompensate owners ofproperty

whose use ofanyportion oftheir property has been diminishedby

20%

ormore byfederalregulatory law.

Peabody,supranote 67,at203. PresidentClintonhas

threatenedtoveto theactdescribingitas"arequirement

thatGovernmentpaypropertyownersbillionsofdollars

every time

we

actto defend our seashoresorwetlands

or openspaces."Peabody,supra note 67, at200.The statecompensationacts setdifferentpercentages. For

example, Louisiana has a

20%

lossthreshold, Texas a

25%

loss threshold, and Mississippi a

40%

loss threshold.See RecentLegislation,supranote57,atn.7.

Washington's law (whichwasrepealedbyreferendum),

like the law proposed in North Carolina, required compensation forany diminution in value ofprivate property. "Thatthe Washington law was excessively

'stringent' was probably a primary factor behind its

recent rejection by Washington voters." Recent Legislation,supranote57, atn.7(citingDavidPostman, Washington State Rejects LandRights, Wash. Post.,

Nov. II, 1995, at El). Florida's bill does not set a

percentage but requires the state government to compensate private property owners whenever a

governmental regulation imposes an "inordinate burden" on the ability ofthe landowner to use her

property.RecentLegislation,supranote57,atn.9and accompanyingtext.

68

See, e.g., Taking "Takings Rights" Seriously:

A

Debate on Property Rights Legislation Before the 104th

Congress, 9 Admin. L.J. Am. U. 253, 267 (providing the comments ofRoger Marzulla

who

criticizes the

"vagueanduncertain"jurisprudenceoftakingslaw).

69

Meltz,supranote 59,at22.

70

Marzulla,supranote 32, at635. 71 _{Pennsylvania Coal}

v.Mahon,260U.S.393,413(1922).

7:

LaVelle.supranote35 (notingthecommentsof former

SolicitorGeneral,

now

Harvard

Law

professor,Charles

Friedwhocallscompensationbills"radical projects]").

73

SeeN.C.Gen. Stat. § 106-803 (1995) (requiringswine farms and lagoons to be sited away from certain protectedneighboringpropertieslikechurches,schools

and occupied residents).

74

Taking "TakingsRights"_Seriously:

_A

_{Debate onProperty} Rights LegislationBeforethe104thCongress,9Admin.

L.J. Am. U.253,262(1995).

75

MorrisR.Cohen,PropertyandSovereignty, 15Cornell L. Q.8, 13(1927).

76

LauraS.Underkuffler,

On

Property:

An

Essay, 100Yale

L.J. 127,128(1990). ProfessorUnderkuffleralsoargues

that theframersofthe AmericanConstitutiondid not

believeinan individualisticapproachtoproperty law.

77

H.597,N.C. GeneralAssembly,Sess.1995,draftofMarch 28, 1995, at 4.

78