Anoka County, Minnesota - Background

Litigation Backgrounder

Bogged Down in Minnesota's
Regulatory Swamp

[T]his right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property. Dolan v. City of Tigard, 114 S. Ct. 2309, 2320 (1994).

John and Josephine Bronczyk (pronounced bronze-ik) are siblings and semi-retired farmers. They own 160 acres in Anoka County, Minnesota, where they have lived and farmed for nearly 70 years. Although they have given up dairy farming, they continue to grow rye and hay and to keep a vegetable garden. A friend also keeps a small bee farm on the property.

Less than one quarter of the land has been cleared; the Bronczyks use only a small area for their house and crops. Nine acres at the southern border of their land are covered by Columbus Lake, an open water wetland that also extends over the land of three neighbors. A large public road borders the Bronczyks' land on the northern side. Between the lake and the road, there is a continuous stretch of thick vegetation. The Bronczyks consider themselves conservationists; they have no wish to develop the property and enjoy their land in its natural state. John Bronczyk takes a long ramble across the property every morning.

The Bronczyks have watched in dismay as the state has imposed increasingly stringent regulations on their land. First the state prohibited draining the marsh at the bottom of the property. Then, when the state designated the marsh as a protected wetland, the Bronczyks discovered that an indeterminate amount of solid land surrounding the marsh also would be treated as protected wetland. In 1990, when the Department of Natural Resources (DNR) finally set the boundary of the wetland, the Bronczyks found that three-quarters of their land is now considered protected wetland.

But not just wetland—"public waters wetland." Under Minnesota law, any wetland that abuts a large lake is deemed "public water"—even if it is solid land. The distinction has serious ramifications: landowners cannot exclude other people from a public water, as long as they have access to it, either from a public road or adjacent property. Unfortunately for the Bronczyks, the public does have access to their property because it is bordered on one side by a large public road and on other sides by neighboring public water. Since most of their land is now "public water" (even though it is solid land), someone could walk from one of at least two public roads, across public water, and all over the Bronczyks' property. Only in the bizarre world of government regulation can a mere mortal walk on water! The land is ideal for duck and deer hunting, but the Bronczyks do not want hunters using their property without permission, especially since parts of their land designated as public water lie less than 200 yards from the Bronczyks' house, work, and recreational areas.

When the state declared the Bronczyks' land public water, it reduced the Bronczyks from owners of the land to mere custodians of a public park. Since they cannot enjoy the land in solitude, they actually have no greater rights to the property than any other member of the public. And the irony is that wetlands laws are ostensibly designed to protect the environment. Yet instead of protecting the environment, the state has granted the public the right to trample and hunt on the public water, surely causing more environmental damage than John Bronczyk's solitary walks. In the government's zeal to expand its regulatory reach, it has neglected to consider the rights of landowners.

The Regulatory Maze

The last twenty years have seen an explosion of land use regulation. From zoning restrictions to environmental regulations, landowners face an obstacle course in managing their land. As the quantity of regulations increase, so does their complexity. Thus, a single piece of land often is subject to an array of confusing federal, state, and local programs and restrictions, and it can be extremely difficult and costly to understand which regulations apply, let alone to comply with them.

Nowhere is the regulatory miasma thicker than in the realm of protected wetlands. Minnesota, for instance, has between 7.5 and 8.7 million acres of wetland. At least 261,000 acres are "public waters wetlands," large wetland areas that the state classifies as public water. Wetlands are regulated at the federal level by the Environmental Protection Agency, the Army Corps of Engineers, the Soil Conservation Service, and the Fish and Wildlife Service. The State of Minnesota regulates its wetlands through the Department of Natural Resources, the Board of Water and Soil Resources, and the Pollution Control Agency. Local units of government, including counties, cities, soil and water conservation districts, and watershed districts, impose their own regulations as well.

Landowners must get separate permission from each government entity for any activity affecting wetland, so a Minnesota landowner usually will need to apply to at least three different agencies for a permit. For example, a landowner in Steenerson Township applied for and obtained permits from the Soil and Water Conservation District, the Department of Natural Resources, and his local watershed district for constructing a driveway on his property. Although these agencies all granted the permits, the Army Corps of Engineers delayed its response for a year and then denied the permit. Knowing the appropriate agencies to contact can also be a problem, and there are criminal penalties for neglecting to obtain a permit. The U.S. Army Corps of Engineers prosecuted one landowner for putting clean dirt into a muddy lot filled with beer cans.

Threading the way through the maze of restrictions, mandates, and incentive programs can be quite a challenge for the ordinary landowner. Federal law prohibits draining, filling, or removing material from wetlands. Various other federal statutes govern impacts on wildlife. There are two types of federal permits. General permits apply nationwide and allow activities like the construction of road crossings or utility installation. Individual permits require a separate application. The individual permit process takes so long that more than half of the applicants eventually withdraw. In Minnesota, separate regulations govern "public waters wetlands" and "wetlands." Even the standards for determining whether a piece of land is wetland differ. Over 80 pages of regulations cover restrictions on wetlands impact, exceptions to the regulations, wetland replacement requirements, and wetland banking programs.

Complexity of regulation is not the only problem Minnesota landowners face, however. Minnesota's laws have also become increasingly strict, and state bureaucrats have wielded their power by arbitrarily preventing local governments and landowners from performing even minor activities affecting wetlands. Under the latest regulations pursuant to the Minnesota Wetland Conservation Act, a wetland may be as small as 400 square feet, and it may be wet for as little as 14 nonconsecutive days per year. Any effect upon a wetland must be "mitigated" by creating new wetland, and landowners are often required to create twice as much replacement wetland as they drain. Five Minnesota counties are so worried about the costs of enforcing the Act and defending lawsuits that they have refused to sign it.

The Department of Natural Resources and the Board of Soil and Water Resources, charged with the enforcement of these rules, arbitrarily prevent landowners from performing even the most basic repairs on their property or penalize them for making minor improvements, even if the owner's activity does not harm the land. In Veldt township, the DNR initiated criminal and then civil action against the township for repairing a drainage system, even though the repair drained only 1/10 of an acre of wetland. Without the drainage, the road was becoming soggy and dangerous. The DNR suggested a repair that could easily trip and injure passersby. The township noted that the DNR was more concerned with wetland than public safety. Similarly, the DNR prosecuted a Marshall County contractor for removing material left over from a road repair that he was required by contract to remove in order to widen a ditch. In Beltrami County, the DNR is forcing a landowner to remove six inches of fill soil that he used to create a backyard for his house.

Property owners have not taken kindly to this morass of regulation, and more than 500 grassroots property rights groups have sprung up all over the country to oppose excessive land regulation, including the new Minnesota Landowners Rights Association. Landowners become frustrated as regulations decrease the value and use of their land without providing compensation. Strict land regulation converts the private owner into a mere custodian of land for the perceived public good. Even though governments can exercise their power of eminent domain and acquire full title and rights to a piece of property by paying for it, they often prefer to regulate and avoid payment, thus forcing the private property owner to bear the cost of a public benefit.

The Bronczyks' situation shows in microcosm what is happening throughout the country. Their land is subject to regulation by Minnesota's Department of Natural Resources, local government, and several federal agencies as well. Regulations, bureaucracy, and confusion increased when Minnesota decided to inventory its wetlands. Defining regulated areas has become a major battleground, with environmentalists and government officials seeking a loose and ever-expanding definition and property owners seeking narrow and definite boundaries. In the case of the Bronczyks, the government has used a broad, vague definition in order to regulate the Bronczyks' land. When the State completed its public waters and wetlands inventory in 1984, the listing of Columbus Lake, the marsh the Bronczyks share with three other property owners, was included but the boundaries of the wetland were not specified. The official map did not do so either.

The Bronczyks brought the Department of Natural Resources to court, arguing that they needed to know just how much of their land was being regulated. Refusing to make a clear statement defining its regulatory reach, the DNR instead responded that the Bronczyks could simply submit a formal proposal if they wanted to make any changes on their land. At that point, the DNR would decide if that land was part of the wetland or not. The court held that the Bronczyks had a right to know how much of their land was regulated, but anticipated that a later map or action on the part of the DNR would indicate the boundaries. The Bronczyks' repeated requests to set the boundary of the wetland were finally answered six years later when the DNR performed a survey of the land.

As is all too typical, the law that determines how much of the Bronczyks' property is public water is confusing to a lawyer and incomprehensible to everyone else. When the Bronczyks looked to the law to determine which land was public water, they found the statutes contradicted each other. When they attempted to confirm their ability to exclude the public, they found the law was ambiguous at best. As is also typical, the DNR first showed a remarkable disinterest in the Bronczyks' desire to understand their rights and then interpreted confusing law by classifying as much land as possible as public water with public access. Imagine the Bronczyks' shock when they finally discovered that three-quarters of their land is public water and now open to the public. As the Bronczyks have learned, Minnesota has developed an insatiable appetite for regulation and control of private land.

Litigation Strategy

The Institute for Justice challenges Minnesota's deprivation of the Bronczyks' right to exclude as a taking of property. The Fifth and Fourteenth Amendments to the United States Constitution and Article I of the Minnesota Constitution require that Minnesota pay compensation for depriving landowners of the use of their property. This lawsuit seeks a declaration recognizing the Bronczyks' right to exclude people from their land or compensation for the loss of that right.

Regulation does not come without costs, and recognizing that the costs of land regulation increasingly fall upon the private property owner, the Supreme Court has begun revitalizing the "Takings Clause" of the Constitution to require local governments to pay compensation for regulating property in a way that deprives landowners of the value of their property.

After a period of time where other constitutional rights seemed to receive greater protection by the courts, the United States Supreme Court recently stressed the importance of property rights, stating that the right to compensation for a taking must not be "relegated to the status of a poor relation" in comparison to other rights. The Court rejected the argument that the regulations should be presumed constitutional because they were economic regulations, rather than restrictions on personal liberties. This is a false distinction. "Individual freedom finds tangible expression in property rights." The Dolan decision "signals a break in the false dichotomy of rights that permitted massive government regulation of property and economic affairs."

The Bronczyks' case is an important extension and necessary application of recent Supreme Court rulings protecting property rights. When South Carolina reclassified property owner David Lucas' land as a portion of the coast where building was not permitted, the Supreme Court held that South Carolina owed compensation. Likewise, Minnesota may not simply reclassify the Bronczyks' land as public water without paying compensation.

In two recent cases, the Supreme Court rejected the attempt of states to require landowners to grant public access to their land as a condition of receiving needed building permits. When California required James and Marilyn Nollan to allow the public to walk along their beachfront property in exchange for a permit to rebuild their house, the Supreme Court ruled that California engaged in a taking of the property. Most recently, the City of Tigard, Oregon required Florence Dolan to give part of her land to the city for a public bicycle path in exchange for a building permit. The Court again held that the city had taken the land and owed compensation. But since the Bronczyks have not tried to develop their land, Minnesota could not offer the Bronczyks a permit in exchange for public access to the public water on the Bronczyks' land. Minnesota gained additional land for public hunting and recreation, and the Bronczyks lost their most precious property right and gained nothing at all.

The Bronczyks' case is especially important because Minnesota did not state its intention to take the Bronczyks' land. Instead, it engaged in an insidious process of increasing regulation, a creeping taking rather than a swift one. The Bronczyks first realized that the lake was public water, then some of the surrounding land, and finally so much land that the "public water" abutted the public road and their right to exclude had disappeared as well.

By suing the Minnesota Department of Natural Resources, the Institute forces the state to choose one of three options: (1) rein in its regulations by conceding that the Bronczyks' land is not public water; (2) admit that the public may not use the "public waters" situated on the Bronczyk's private land; or (3) pay the Bronczyks compensation for taking their land.

The Bronczyks' rights and the rights of other landowners will be vindicated by any of several possible outcomes in this case. If the state or court determines that the 104 acres in dispute are not public water, the Bronczyks will regain the right to exclude others from the land, and the land will be removed from the regulatory reach of the DNR. If the court rules that owners retain the right to exclude others from public waters wetlands, the Bronczyks will have secured the right they seek, and the Institute will have challenged the assumption that the Bronczyks are mere custodians of their land on behalf of the public. Finally, if the state admits that it has deprived the Bronczyks of their right to exclude, it will be forced to pay them for taking their property. All of these outcomes will stem overzealous regulation and bolster the rights of property owners, creating an important precedent for property rights.

The Institute's litigation team in this lawsuit includes staff attorney Dana Berliner and litigation director Clint Bolick. Local counsel in Minnesota is Erick G. Kaardal of Trimble & Associates in Anoka.

Conclusion

Land use regulations are out of control. Most small landowners do not have the resources or energy to challenge regulations. They simply give up. Once the process starts, the government regulates land more and more until, at the end, it is almost worthless. The goal of environmental protection does not justify running roughshod over property rights. It is time for property owners to demand meaningful limits on the power of government to control their property and their lives.

For more information contact:

John Kramer
Director of Communications
Institute For Justice
901 N. Glebe Road, Suite 900 NW
Arlington, VA 22203

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