Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P23 doc

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LAMAR, LUCIUS QUINTUS
CINCINNATUS
Lucius Quintus Cincinnatus Lamar served as an
associate justice of the U.S. Supreme Court
from 1888 to 1893. Lamar’s public service,
spanning almost 50 years, included both houses
of Congress, the
EXECUTIVE BRANCH, and the
CONFEDERACY.
Lamar was born September 17, 1825, in
Eatonton, Georgia, the son of a wealthy
plantation owner. He graduated from Emory
College in 1845 and then apprenticed in the law.
He was admitted to the Georgia bar in 1847. In
1849 he moved to Oxford, Mississippi, where
he taught mathematics at the University of
Mississippi.
He briefly returned to Georgia, where he
served in the Georgia House of Representatives
in 1853. He relocated to Mississippi in 1855 and
began building his political career . He was
elected to the U.S. House of Representatives and
served from 1857 to 1860, relinquishing his seat
with the secession of the southern states in
1861.
Lamar played an important role in the 1861
Mississippi Secession Convention. Although he
had doubts about the theory of secession from
the Union, he was influenced by his father-in-
law, Augustus Longstreet, an avowed separatist.

At the convention Lamar drafted the ordinance
of secession, which declared Mississippi no
longer a part of the Union. He joined the
Confederate militia and served as a colonel in
the Mississippi regiment. He also acted in
various diplomatic capacities for the Confeder-
acy, and from 1864 to 1865, he served as
JUDGE
ADVOCATE
of the Army of Virginia.
Following the war Lamar resumed his law
practice and teaching career in Oxford. His
teaching duties expanded to the University of
Mississippi law school. In 1873 Lamar was again
elected to the U.S. House of Representatives. In
1877 he was elected to the U.S. Senate. In 1885
President Grover Cleveland appointed Lamar
secretary of the interior.
In 1887 President Cleveland nominated
Lamar to the U.S. Supreme Court. Republican
opponents fought the nomination, arguing that
Lucius Quintus Cincinnatus Lamar 1825–1893
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1825 Born,
Eatonton, Ga.
1845
Graduated
from Emory
College
1847
Admitted
to
Georgia
bar
1853
Served in
Georgia
House
1856
Elected
to U.S.
House
1861–65
Served in
Confederate
Army

1872
Elected
again to
U.S. House
1876
Elected to
U.S. Senate
1885 Appointed
secretary of the
interior under
President
Cleveland
1893 Died
Macon, Ga.
1888–93 Served as
associate justice of
U.S. Supreme Court
1890 Joined dissent in Chicago, Milwaukee
& St. Paul Railroad Co. v. Minnesota
1861–65
U.S. Civi War
1855 Moved to Miss.
Lucius Q. C. Lamar.
PHOTOGRAPH BY
NAPOLEON SARONY.
COLLECTION OF THE
SUPREME COURT OF THE
UNITED STATES.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
208 LAMAR, LUCIUS QUINTUS CINCINNATUS

Lamar lacked legal experience and that he was
too old. The Senate narrowly approved his
nomination, by a vote of 42–38, making Lamar
the first southerner to join the Court since
JOHN A. CAMPBELL in 1853, and the first Democrat
since
STEPHEN J. FIELD in 1862. He served on the
U.S. Supreme Court from 1888 to 1893.
Lamar’s tenure on the Court was spent
under the leadership of Chief Justice
MELVILLE W.
FULLER. The Full er Court reviewed the efforts
of the federal government to regulate interstate
commerce and curtail the power of monopolies
and trusts. In most cases it agreed with business
that the federal government had limited
constitutional au thority to regulate industry.
Lamar co ncurred, adhering to a belief in the
doctrine of
FEDERALISM. This doctrine has many
facets, including a fundamental assumption
that the national government must not intrude
on the power of the states to handle their
affairs.
Lamar did not author any landmark major-
ity opinions, as he generally received inconse-
quential cases. He joined in the dissent of Justice
JOSEPH P. BRADLEY in Chicago, Milwaukee & St.
Paul Railroad Co. v. Minnesota, 134 U.S. 418,
10 S. Ct. 462, 33 L. Ed. 970 (1890), which stated

that legislatures, not courts, should determine
the reasonableness of railroad rates and other
public policy matters. Lamar died January 23,
1893, in Macon, Georgia.
LAME DUCK
An elected official, who is to be followed by
another, during the period of time between the
election and the date that the successor will fill
the post.
The term lame duck generally describes
one who holds power when that power is
certain to end in the near future. In the United
States, when an elected official loses an
election, that official is called a lame duck
for the remainder of his or her stay in office.
The term lame duck can apply to any person
with decision-making powers, but it is usually
refers to presidents, govern ors, and state and
federal legislators.
When a legislature assembles between
election day and the day that new legislators
assume office, the meeting is called a lame-duck
session. On the federal level, under the
TWENTI-
ETH AMENDMENT
to the U.S. CONSTITUTION, the
Senate and the House of Representatives must
convene on January 3 each year. Incoming
legislators assume office that day, and outgoing
legislators leave office that day. Thus, from the

day after election day in November until late
December, retiring and defeated legislators have
time to pass more legislation.
Legislatures do not have to conduct lame-
duck sessions. In fact, if many of their members
will be new in the next legislative session, the
idea of their defeated lawmakers voting on
legislation may be criticized by the public—
especially by those who voted for the incoming
legislators. The issue of wh ether to conduct a
session between mid-November and early
Ja nuary is usually decided by a vote of the
legislators in office during the last session before
the election. The legislature may elect to
reconvene on a certain date, to adjourn at the
call of the chair of either house or both houses,
or to adjourn sine die (without planning a day to
reconvene). Also, a lame-duck president or
governor has the power to call a lame-duck
session.
Lame-duck sessions may be called to pass
emergency legislation for the immediate benefit
or protection of the public durin g November
or December. They also may be conducted for
political purposes. For example, if a certain
party stands to lose the presidency or governor-
ship and seats in the new legislature, that party
may seek to push through a few last pieces of
legislation. Thus, lame-duck sessions can spawn
hastily written legislation, and the finished

product may be of dubious quality.
The Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of
1980 (CERCLA), also known as Superfund (42
U.S.C.A. § 9601 et seq.), is a piece of lame-duck
legislation. This federal statute, which regulates
the cleanup of toxic waste sites, was hurriedly
passed by a lame-duck Congress and signed by
lame-duck president
JIMMY CARTER in December
1980. Congress crafted the statute with virtually
no debate and under rules that allowed for no
amendments. CERCLA is regarded as problem
ridden by persons on all sides of the environ-
mental debate.
FURTHER READINGS
Hedtke, James R. 2002. Lame Duck Presidents: Myth or
Reality. Lewiston, NY: Mellen.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LAME DUCK 209
Kuhnle, Tom. 1996. “The Rebirth of Common Law Action
for Addressing Hazardous Waste Contamination.”
Stanford Environmental Law Journal 15.
Longley, Robert. 2009. “Lame Duck Sessions of the U.S.
Congress.” U.S. Government Info. Available at http://
usgovinfo.about.com/od/uscongress/a/lameduck.htm;
website home page: (accessed
September 6, 2009).
Thurmond, William M. 1996. “CERCLA’s ‘All Appropriate
Inquiry’: When Is Enough, Enough?” Florida Bar

Journal 70 (March).
CROSS REFERENCE
Environmental Law.
LAME-DUCK AMENDMENT
The popular name given to the Twentieth
Amendment to the U.S. Constitution.
Senator
GEORGE W. NORRIS proposed the
amendment on March 2, 1932, as a way to
shorten the period of time in election, or even-
numbered, years during which members of
Congress who had failed to be reelected (the
lame ducks) would serve in office until their
terms expired.
The handicap of a session of Congress with
numerous lame ducks was particularly evident
in December 1932. During the 13 weeks of that
session of the Seventy-second Congress, 158
defeated members (out of a total of 431) served
until the new Congress convened in March
1933. In the meantime the newly elected
members, spurred by their recent electoral
victories and the problems of a nationwide
economic depression, had to wait inactive and
unorganized until the term of the old Congress
expired.
The Norris proposal was ratified by the
requisite number of state legislatures on January
23, 1933, and took effect on October 15 of that
year. The new amendment stipulated that the

terms of all members of Congress begin on
January 3. It also required Congress to convene
on January 3 each year and for the president and
vice president to be inaugurated on January 20
rather than in March. Two sections of the
amendment also clarified the problem of
presidential succession under certain conditions.
LAND GRANT
A conveyance of public property to a subordinate
government or corporation; a muniment of title
issued by a state or government for the donation of
some part of the public domain.
A land grant, also known as land patent, was
made by the U.S. government in 1862, upon its
grant to the several states of 30,000 acres of land
for each of its senators and representatives
serving in Congress. The lands were subse-
quently sold by the states and, through the
proceeds, colleges were established and main-
tained. Such colleges, which are devoted mainly
to teaching agricultural subjects and engineer-
ing, are known as land grant colleges.
LAND-USE CONTROL
Activities such as zoning, the regulation of the
development of real estate, and city planning.
Land-use controls have been a par t of
Western civilization since the Roman Empire
in 450 B.C. promulgated regulations concerning
setback lines of buildings from boundaries and
for distances between trees and boundaries.

Regulations on the use of land existed in
colonial America, but the demand for public
regulation of real estate development did not
become significant until the twentieth century.
As the United States shifted from a rural to an
urban society, city governments sought to gain
control over the location of industry, com-
merce, and housing. New York City adopted the
first comprehensive zoning ordinance in 1916.
By the 1930s, zoning laws had been adopted in
most urban areas.
The development of master plans and
zoning regulations became an accepted part of
urban life. Following
WORLD WAR II, housing
patterns shifted from the inner city to suburbia.
The suburbanization of the United States led to
the creation of discrete housing developments.
Growing suburban communities began impos-
ing regulations on the amount and type of
housing that would be allowed within their
municipal boundaries. Beginning in the 1970s,
as urban sprawl created problems that crossed
municipal borders, attention turned to regional
planning. Concerns about the environment and
historic preservation led to further regulation of
land use.
Federal, state, and local governments, to
varying degrees, regulate growth and develop-
ment through statutory law. Nevertheless, a

majority of controls on land stem from actions
of private developers and government units.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
210 LAME-DUCK AMENDMENT
The use of land can be affected by judicial
determinations that frequently arise in one of
three situations: (1) suits brought by one
neighbor against another, (2) suits brought by a
public official against a neighboring landowner
on behalf of the public at large, and (3) suits
involving individuals who share ownership of
a particular parcel of land.
Private Land-Use Restrictions
A number of restrictions on land are a result of
actions by government units. Many restrictions,
however, are created by land developers. Such
devices take several forms and can be either
positive or negative in nature. They include
defeasible fees, easements, equitable servitudes,
and restrictive covenants.
Defeasible Fees In defeasible fee estates, the
grantor gives land to the grantee, subject to
certain conditions. For example, A might
convey a parc el of land to B, provided that it
be used for school purposes. The effect of the
defeasible fee is that it restricts the use of the
property by the possessor. Failure to observe
the conditions causes the property to revert to
the grantor. Estates of this type are no longer
favored in most jurisdictions, because they

make the transfer of land cumbersome and do
not take into account unforeseen situations. The
limited scope of defeasible fees makes them of
limited value.
Easements Easeme nts are rights to use the
property of another for particular purposes.
One common type of easement in current use
is the affirmative grant to a telephone company
to run its line across the property of a private
landowner. Easements also are now used for
public objectives, such as the preservation of
open space and conservation. For example, an
easement might preclude someone from build-
ing on a parcel of land, which leaves the
property open and thereby preserves a park for
the public as a whole.
Equitable Servitudes Equitable ser vitudes are
land-use restrictions enforceable in a court of
equity. They are created by the language of the
promise in the form of a covenant (agreement)
between two individuals. For example, sup-
pose A owns a parcel of land on the edge of a
city and subdivides the parcel into ten lots,
numbered 1 to 10. A then records a declaration
of restrictions, limiting each of the ten lots to
use solely for family dwelling, providing
that only a single-family house may be built
on each lot. A sells the lots to ten people, and
each deed contains a reference to the declara-
tion of restrictions by record book and page

number, coupled with a provision that the
person purchasing t he lot and a ll successive
purchasers of the lot are bound by the
restrictions.
Restrictive Covenants Restrictive covenants
are provisions in a deed limiting the use of the
property and prohibiting certain uses. They are
similar in effect to equitable servitudes, but
restrictive covenants run with the land because
the restrictions are contained in the deed.
Restrictive covenants are typically used by land
developers to establish minimum house sizes,
setback lines, and aesthetic requirements
thought to enhance the neighborhood. The
legal differences between equitable servitudes
and restrictive covenants are less important
today, as courts have merged the terms into one
general concept.
The Master Plan and Official Map
Municipal land-use regulation begins with a
planning process that ultimately results in a
comprehensive or master plan followed by
ordinances. These ordinances involve the exer-
cise of the municipality’s police power through
zoning, regulation of subdivision developments,
street plans, plans for public facilities, and
building regulations. Many states provide for
the creation of an official map for a municipality.
The map shows the location of major streets,
existing and projected public facilities, and other

such landmarks. Developers must plan their
subdivisions in accordance with the official map.
The master plan takes into account the
location and type of activities occurring on the
land and the design and type of physical
structures and facilities serving these activities.
Long-range projections of population and
employment trends are considered. The plan-
ning process is designed to enable a locality to
plan for the construction of schools, streets,
water and sewage facilities, fire and police
protection, and other public amenities, and
the private use of land is controlled by zoning
and subdivision ordinances enacted in compli-
ance with the plan.
Since the 1970s more emphasis has been
placed on regional and statewide planning.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LAND-USE CONTROL 211
These planning initiatives have often been based
on environmental concerns. Regional planning
has become attractive to urban areas that cross
state lines. Instead of dea ling with two or three
competing and conflicting local plans, neigh-
boring municipalities can refer to a regional
plan that offers one comprehensive vision and
one set of regulations.
Zoning
Zoning is the regulation and restriction of real
property by a local government. It is the most

common form of land-use regulation, as
municipalities rely on it to control and direct
the development of property within their
borders, according to present and potential uses
of the property. Zoning involves the division of
territory based on the character of land and
structures and their fitness for particular uses.
Consideration is given to conserving the value
of property and encouraging the most ap-
propriate use of land throughout a particular
locality.
A municipality’s power to enact zoning
regulations is derived from the state in an
exercise of its police power. Police power is the
inherent power of the government to act for
the
WELFARE of those within its jurisdiction. The
power to impose zoning restrictions is con-
ferred on a municipality by a state
ENABLING
STATUTE
.
Zoning laws are intended to promote the
health, safety, welfare, convenience, morals, and
prosperity of the community at large, and are
meant to enhance the
GENERAL WELFARE rather
than to improve the economic interests of any
particular property owner. They are designed to
stabilize neighborhoods and preserve the char-

acter of the community by guiding its future
growth.
The essential purpose of zoning is to
segregate residential, commercial, and industrial
districts from one another. Within these three
main types of districts there may be additional
restrictions as to population density and
building height. The use of property within a
particular district is, for the most part, uniform.
For example, if a district is zoned for industrial
use, residential buildings are not normally
permitted there. However, if a resid ential
building predates the zoning plan, it is
Planned Communities: Read the
Fine Print
O
B
ne in eight people in the United States live in
planned communities, which include town-
houses, condominiums, co-ops, and entire real estate
developments containing single-family homes. A
common feature of all planned communities is a
homeowner association, which oversees the mainte-
nance and administration of the real estate, especially
the common areas shared by all owners. A board of
directors of the association, elected by the property
owners, enforces the community’srules.
Planned communities often impose a number of
restrictions on their members. These are typically
contained in the real estate deed, which becomes a

contract between the property buyer and the
community. Purchasers are bound by these restric-
tions whether or not they read or understood them.
The restrictions may cover a wide range of
architectural and aesthetic limitations, and are
believed to increase the value of property in the
community. Unwary residents may find the limita-
tions extreme.
Residents of planned communities have faced
limitations on things such as paint colors, pets,
sports and sporting equipment, and outdoor dec-
orations. U nder such restricti ons homeowners have
been threatened with fines for stringing Christmas
lights, taken to court because their dog was too
heavy, and prohibited from throwing a Frisbee.
Association dues can be used to pay for a lawsuit
enforcing a restriction, and some bylaws require the
defendant homeowner to reimburse the associa-
tion’s legal fees.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
212 LAND-USE CONTROL
permitted to remain. This exception is called a
nonconforming use.
Municipalities exercise wide discretion in
fixing the boundaries of commercial and
industrial districts. A number of ordinances
have been enacted to protect residential zones
from encroachment by gasoline stations,
public parking facilities, businesses selling intox-
icating liquors, and factories that emit smoke or

odors.
When enacting zoning ordinances, a mu-
nicipality takes m any factors into consider-
ation. The most significant are the density of
the population; the site and physical attributes
of the land involved; traffic and transportation;
the fitness of the land for the permitted use;
the character of neighborhoods in the com-
munity; the existing uses and zoning of
neighboring property; the ef fect of the permit-
ted use on land in the surrounding area; any
potential decrease in property values; the gain
tothepublicatlargeweighedagainsteconom-
ic hardships imposed on in dividual property
owners; and the amount of time that the
property has remained unimproved, reviewed
in the context of land development in the area
as a whole.
Exclusionary zoning is the practice of using
the zoning power to develop the parochial
interests of a particular municipality at the
expense of surrounding regions. Its purpose is
to advance economic and social segregation.
Exclusionary zoning involves using zoning to
take advantage of the benefits of regional
development without being forced to bear the
burdens of such development, as well as using
zoning to maintain particular municipalities as
enclaves of affluence or social homogeneity.
Both practices have been strongly condemned

in the courts, since they violate the principle
that municipal zoning ordinances should ad-
vance the general welfare. Exclusionary zoning
takes various fo rms, such as requirements
setting a minimum lot size or house size, the
prohibition of multifamily housing, and the
prohibition of mobile homes.
A municipality has a legitimate interest in
ensuring that residential development proceeds
in an orderly and planned manner and that the
burdens on municipal services do not increase
faster than the ability of services to expand. It
must also preserve exceptional environmental
and historical features. Increasingly, however,
exclusionary techniques have come under fire
as unfair ways of preventing the creation of
economically, racially, and socially diverse
communities.
Nuisance
A nuisance is an unreasonable, unwarranted, or
illegal use by an individual of his or her own
property, that in some way injures the rights
of others. A nuisance action ordinarily arises
between two neighboring landowners or is
brought by a government attorney. The person
initiating the nuisance action seeks to control
or limit the use of the land that is creating the
nuisance. Nuisance law is based on the principle
that no one has the right to use property in a
manner such as to injure a neighbor.

A private nuisance arises when there is an
interference with the use or quiet enjoyment of
land without an actual
TRESPASS or physical
invasion. For example, A might sue B, alleging
that constant loud noises by B amount to a
nuisance to A and A’s property, which may or
may not adversely affect other property in
the area.
A public nuisance extends further than a
private nuisance, because it adversely affects
the health, morals, safety, welfare, comfort,
or convenience of the general public. Statutes
in many states precisely define what constitu-
tes a public nuisance. Common examples are
water and air pollution, the storage of
explosives under dangerous conditions, houses
of
PROSTITUTION, the emission of bad odors
or loud noises, and the obstruction of
public ways.
A nuisance can be both private and public,
since certain activities may be sufficient to
constitute a public nuisance while still sub-
stantially interfering with the use of the
adjoining land to such a degree that a land-
owner may sue on the ground that a private
nuisance is pre sent. Private nuisance refers to
the property interest affected, not to the type of
conduct.

Nuisances may occur in rural as well as
urban areas, b ut they become more obvious
when the area is well established as residential
in nature. The fact that an activity of a certain
type is permitted in an area under the zoning
ordinance does n ot mean that it may not be
stopped if it develops into a nuisance. If an
otherwise legitimate activity threatens the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LAND-USE CONTROL 213
health or safety of the community in general, it
can be classified as a public nuisance. Usually,
however, very little relief is available for
someone who intentionally locates in an
industrial area.
Waste
Waste laws prohibit the unreasonable or
improper use of land by someone who is in
rightful possession of the land. The most
The West Wrestles with
Washington
B
eginning in the 1990s, a number of
controversial clashes over federal
authority have concerned the use of
federally owned land. One such struggle,
between the Clinton administration and
western states, for example, covered a
variety of issues: fees for ranchers; water,
timber, and mining rights; and environ-

mental restrictions on land use. Each
issue was part of a more fundamental
question: Who has authority to regulate
use of the land—federal or local officials?
Challenging the administration in Con-
gress and fighting the federal government
in court, a broad coalition of western
governors, lawmakers, and business inter-
ests sought au tonomy an d r elief f rom
outside regulation. More than 60 western
counties asserted legal authority over
federal lands within their borders. As
political tensions heightened, acts of vio-
lence aimed at federal officials ra ised the
stakes in what the media called the county
supremacy movement, and the U.S.
JUSTICE
DEPARTMENT
brought suit to stop it.
The western conflict had been sim-
mering for two decades. A rise of
environmental concerns in the 1970s
had created a strong lobby that pressed
for stricter controls on land use, a
demand especially relevant to the mil-
lions of acres of federal land in the U.S.
West. This development affected western
ranchers, who lease federally owned land
for their livestock. Early on, environ-
mentalists spurred the passage of the

1971 Wild Horse and Burro Act, 16 U.S.
C.A. § 1332 et seq. This law protected
wild horses, but at the same time caused
deterioration to land on which livestock
graze. Private landowners also chafed
under the
ENDANGERED SPECIES ACT (ESA)
(16 U.S.C.A. § 1538(a)(1)(B)). Passed in
1973 to preserve specific vanishing spe-
cies, the ESA restricted their right to
develop their land.
Western quarrels with federal man-
agement of the land grew into the so-
called Sagebrush Rebellion of the late
1970s and early 1980s. This was an
attempt by several states to wrest control
over land management from the federal
government and turn it over to state
authorities. The rebels argued that local
control would mean less bureaucracy and
more responsiveness than could be offered
by the federal Bureau of Land Manage-
ment (BLM), which manages 17 7 million
acres in the western states. Some went
further. For instance, in 1979 Nevada
declared legislation that the state owned
and had control and jurisdict ion over all
“public lands” within it (Nev. Rev. Stat. §§
321.596–.599). This claim was largely
symbolic in that it excluded feder al land

such as parks, forests, and wildlife refuges.
Although the rebellion gained slight
support from the Reagan administra-
tion—whose anti-regulatory stance
allowed grazing on nearly all public
lands—it failed to lead to the transfer
of power that its proponents wanted.
Discontent among western political and
business leaders remained.
The conflict came to a new crisis in
the early 1990s. The election of President
BILL CLINTON in 1992, and his choice of the
environmentally minded Bruce Babbitt
as interior secretary, quickly heightened
among environmentalists expectations
for tougher restrictions. The administra-
tion promised broad rangeland reforms.
It favored raising the grazing fees charged
to cattle ranchers from $1.86 to $4.28 per
animal unit month (AUM) (the amount
of forage needed to feed one animal for a
month) in order to bring the fees closer
to the average $8.00 to $15.00 per AUM
charged on private land. The proposed
reforms also asserted that the federal
government would hold title to any water
sources developed on federal lands. They
imposed more stringent ecological stan-
dards and called for ranchers who abused
land to be punished by measures that

ranged from reductions in the length of
grazing permit terms to outright disqual-
ification from the permit program.
The proposals drew praise from
environmentalists. They hailed the ad-
ministration for trying to bring needed
protection to western ecological systems
and for trying to cut what they argue is a
federal subsidy to ranchers. The National
Wildlife Federation called the reforms
long overdue. To more radical groups
like Rest the West, whose slogan was
Cattle-Free by ’93, the Clinton adminis-
tration’s efforts were a step toward
eliminating ranching on public lands
altogether.
But among western business and
political interests, the proposals caused
an uproar. Opponents called the increase
in grazing fees unfair, arguing that it
failed to take into account that the more
expensive private lands offer ranchers
superior grazing as well as improvements
such as fences and water sources. Indus-
try representatives claimed the fee hike
would crush already struggling ranchers.
The American Sheep Industry Associa-
tion, for example, estimated that a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
214 LAND-USE CONTROL

common relationship between waste-law
litigants is that of
LANDLORD AND TENANT, but
waste laws also apply to grantors and grantees,
and to owners of land for life and their
successors.
Waste comes in four forms: volun tary,
permissive, ameliorating, and equitable. An
intentional act that diminishes the value of land
constitutes voluntary waste. Permissive waste is
the omission of expected maintenance to land
quarter of its members would be driven
out of business, at a loss of $1.68 billion
in revenues. In public statements and at
meetings throughout the West, ranchers
and politicians decried the effort as a
giveaway to environmentalists by out-of-
touch federal bureaucrats.
The administration tried several
times to make the reforms stick. Presi-
dent Clinton originally wanted to make
higher grazing fees part of his first
budget, but western lawmakers pro-
tested. The administration compromised
on water issues and the size of the
grazing fee, but to no avail. In October
1993 an attempt to pass the reform
package was blocked by several filibusters
in the U.S. Senate. Although opponents
declared victory, Babbitt plowed ahead

with a plan to bring the reforms into
effect through changes in BLM regula-
tions. Known as Rangeland Reform ’94,
the revised regulations were put into
place in February 1995 after the interior
secretary conducted numerous public
meetings with ranchers and environmen-
talists (BLM Grazing Administration
Rules and Regulations [60 Fed. Reg.
9894]). The sharp fee hike was shelved
in favor of a customary twelve-cent
annual increase. Another significant
compromise was the establishment of
grassroots resource advisory councils,
made up of ranchers, environmentalists,
and other citizens who would advise the
BLM on policy decisions.
The issuance of new regulations,
even sweetened by compromise, hardly
quelled western opposition. While fight-
ing the rangeland reform battle, western
lawmakers had also grappled with the
administration over the issue of mining
rights. The dispute centered on an 1872
law that allowed mining companies to
snap up federal land at $2.50 to $5.00 an
acre (the Mining Act of 1872 [30 U.S.C.
A. § 22]). The administration said foreign
companies were exploiting the law,
originally intended to help small pro-

spectors. Nevertheless, western states
refused to budge on demands that a
higher
ROYALTY fee be imposed to com-
pensate the federal government for the
incredibly low price for land. Any
increase, they said, would cost their
states revenue from the mining industry.
Meanwhile, a more radical element
in the western conflict had appeared.
Between 1991 and 1995, nearly 60
western counties asserted in ordinances
that they—not the federal government—
had control over federal lands. As this
trend grew and became known as the
county supremacy movement, the Na-
tional Law Journal noted that it took two
legal forms. One was typified by Bound-
ary County, Idaho, whose 1991 ordi-
nance cited local custom and culture as
reasons for requiring all federal and state
agencies to comply with its land-use
policy plan. The second originated in
Nye County, Nevada, where two resolu-
tions in 1993 declared that the county
owned all public lands and public roads.
Nye County became a focal point of
the new movement. Many of its consti-
tuents openly resented federal control of
nearly 87 percent of the county’s land. In

1994 it became the scene of concern
after Dick Carver, a Nevada rancher and
Nye County commissioner, used a bull-
dozer to plow open a forest road over the
objections of an armed U.S. Forest
Service agent. The incident made Carver
a sort of folk hero, and he began
delivering lectures in more than 20 states.
Hostilities erupted in Nye County, and
bombs in New Mexico and Nevada and
gunshots in California were aimed at
federal employees.
Determined to stop the rebellion and
reassert federal authority over federal
lands, the U.S.
DEPARTMENT OF JUSTICE
joined one lawsuit and filed another. In
March 1996 it won both. In the first,
Boundary Backpackers v. Boundary County,
913 P.2d 1141, the Idaho Supreme Court
invalidated Boundary County’s ordinance
as unconstitutional. In the second, the
U.S. district court in Nevada struck down
Nye County’sordinance(United States v.
Nye County, 920 F.Supp. 1108).
In the new century, one of the
biggest land-use battles in the West has
been over the proposed use of Yucca
Mountain in Nevada as the storage site
for the nation’s nuclear waste. The plan

is to build a nuclear waste repository
facility 1,000 feet below the mountain.
While the Congress and the president
signed off on the decision to use the
mountain in 2002, the state of Nevada
has filed a lawsuit to stop it. Landowners
and Native American tribes have joined
this legal fight, and it was expected to be
years before the courts made a final
determination on this issue. Despite the
federal government’s victories on some
fronts, the West’s desire for greater
independence and its distrust of federal
authority indicate the likelihood of
further struggles.
FURTHER READINGS
Boyce, James K., et al. 2003. Natural Assets:
Democratizing Ownership of Nature.
Washington, D.C.: Island.
Gorman, Tom. 2002. “Bush Makes Yucca
Mountain Project Official.” Los Angeles
Times (July 24).
Merill, Karen R. 2002. Public Lands and
Political Meaning: Ranchers, the Govern-
ment, and the Property Between Them.
Berkeley: Univ. of California Press.
Scheberle, Denise. 2004. Federalism and Envi-
ronmental Policy: Trust and the Politics of
Implementation. Washington, D.C.: Geor-
getown Univ. Press.

CROSS REFERENCES
Environmental Law; Environmental Protec-
tion Agency.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LAND-USE CONTROL 215
or its property. Ameliorating waste is a land use
that is not authorized by the owner but
nevertheless improves the value of the property.
Finally, if a use is inconsistent with the land’s
highest use, a person holding a
FUTURE INTEREST
in the land may bring an equitable waste action
against the possessor.
A successful action for waste usually results
in the awarding of money damages, but courts
sometimes issue an injunction. This means that
the landowner can obtain a court order
preventing the possessor from engaging in
wasteful acts. If a landowner can show a
substantial likelihood of harm if such an order
is not issued, and that no other satisfactory legal
remedies exist, an injunction may be issued.
Eminent Domain
EMINENT DOMAIN is the right or power of a unit
of government or a designated private individ-
ual to take private property for public use,
following the payment of a fair amount of
money to the owner of the property. The
FIFTH
AMENDMENT

to the U.S. CONSTITUTION provides,
“[N]or shall private property be taken for public
use, without just compensation.” This state-
ment is commonly referred to as the Takings
Clause. The theory behind eminent domain is
that the local government can exercise such
power to promote the general welfare in areas of
public concern, such as health, safety, or
morals.
Eminent domain may be exercised by
numerous local government bodies, including
drainage, levee, or flood control agencies;
highway or road authorities; and housing
authorities. For example, if a city wishes to
build a new bridge, and the land it needs is
occupied by 60 houses, it may use its eminent
domain power to take the 60 houses, remove
the buildings, and build the bridge. The
government must make
JUST COMPENSATION to
the affected property owners, who are entitled
to the
FAIR MARKET VALUE of the property.
The power of eminent domain is exercised
through condemnation proceedings. These
proceedings establish the right to take the
property by the government or designated
private individual (usually public utilities) and
the amount of compensation to be paid for
the property.

The U.S. Supreme Court has examined the
relation between land-use regulations and the
Takings Clause. In Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886,
120 L. Ed. 2d 798 (1992), the Court held that a
total deprivation of economic use amounts to a
taking for which damages may be awarded.
Lucas involved a developer who had purchased
coastal lots to construct two single-family
residences. A South Carolina la w, which sought
to protect the eroding shoreline, proh ibited him
from building anything except wooden walk-
ways and a wooden deck. The U.S. Supreme
Court agreed that he was entitled to compensa-
tion because this was a regulatory taking.
In Dolan v. City of Tigard, 512 U.S. 374, 114
S. Ct. 2309, 129 L. Ed. 2d 304 (1994), the
Supreme Court limited government power to
take private property for the public good. It
ruled that a city cannot force a store owner to
make part of the owner’s land a public bike path
in exchange for a permit to build a larger store.
The decision makes it more difficult for
municipalities to require that land developers
give up for public purposes part of their
property, including sidewalks, access roads,
and parks. If the government needs the land,
it must compensate the owner.
The Supreme Court made a landmark
decision in Kelo v. City of New London, 545

U.S. 469,125 S. Ct. 2655, 162 L. Ed. 2d 439
(2005), when it held that government may seize
private property for the purpose of economic
development. The city council of New London,
Connecticut, approved a development plan that
called for the acquisition of several parcels of
private property. Where owners were unwilling
to sell the property, the city voted to use
eminent domain to acquire the property. The
development was expected to increase tax
revenue and jobs in the area, but some of the
property that would be condemned would not
be open to the general public. When some
owners objected to condemnation and sued, the
state supreme court and the U.S. Supreme
Court ruled that the definition of “public
purpose” was broad enough to include eco-
nomic development. The decision proved
controversial, leading most states to enact laws
that prohibit the use of eminent domain for
private economic development.
Historic Districts
Since the 1950s more attention has been paid to
the preservation of historic districts. Purchase
or condemnation by the government for
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
216 LAND-USE CONTROL
historic preservation purposes is valid. More
important, acts establishing historic districts
have been upheld as promoting the public

welfare. State and local preservation laws have
been bolstered by the federal National Historic
Preservation Act of 1966 (16 U.S.C.A. § 47 et
seq.), which provides a procedure for registering
buildings as historic landmarks. Apart from
establishing a national register of historic sites,
the act provided for the protection and restora-
tion of historic sites and districts.
Environmental Controls
ENVIRONMENTAL LAW and regulation have signifi-
cantly affected land development. With the
passage of the
NATIONAL ENVIRONMENTAL POLICY
ACT OF
1969 (NEPA) (42 U.S.C.A. § 4321 et seq.),
the public and private sectors were obligated to
conform to certain environmental standards.
The interrelationship of the objectives of NEPA
and more traditional forms of land-use control
under police power are illustrated by NEPA’s
stated objectives, which relate not only to the
environment but also to ensuring aesthetically
pleasing surroundings, protecting health and
safety, preserving historic and cultural heritage,
and preserving natural resources.
NEPA requires that every federal agency
submit an environmental impact statement
(EIS) with every legislative recommendation
or program proposing major federal projects
that will most likely affect the quality of the

surrounding environment. An EIS may be
required for projects such as the rerouting of
an interstate highway, construction of a new
dam, or expansion of a ski resort on federally
owned land.
The EIS is a tool to assist in decision
making, providing information on the positive
Dust, Noise, Smells, But Not a
Nuisance
H
B
omeowners have a leg itimate right to the quiet
enjoyment of their property. Nevertheless,
when that quiet enjoyment is disturbed by the
activities of another property owner, it may be
difficult to have those activities declared a private
or public nuisance.
In Karpiak v. Russo, 450 Pa. Super. 471, 676 A.2d 270
(1996), the Pennsylvania Superior Court ruled that a
landscaping supply business that produced dust, loud
noises, and unpleasant smells in an area that contained
homes as well as businesses was not a private
nuisance. The decision illustrates the need for those
complaining of a nuisance to prove significant harm.
The landscaping supply company was estab-
lished in 1984, when the zoning law classified the
location as business property. The area was
rezoned in 1993, making the area residential. The
company sold topsoil, shredded bark, compost,
sand, and river rock from spring to late fall. Nearby

homeowners complained of dust blowing into their
yard and home; noise fro m trucks, backhoes, and
payloaders; and smells from the compost.
The court rejected these claims of nuisance. It
first noted that the company had lawfully complied
with the zoning ordinance at the time it started the
business. There were other businesses on the same
street. Just because the neighborhood had been
rezoned did not prohibit the continued existence of
the landscape business.
More significantly, the court found that none of
the complaining parties had suffered any significant
harm. Most of the parties worked weekdays and
were absent from the neig hborhood when the
landscape business was in operation. Aside from
one person who had to clean his car and outside
furniture, no one claimed any damages from the
operation of the business. The court concluded that
occasional personal discomfort or annoyance did
not establ ish a serious level of harm that could be
defined as a private nuisance. People who reside in
neighborhoods with businesses close by will
sometimes find their comfort subordinated to the
commercial needs of business.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
LAND-USE CONTROL 217