The federal Migratory Bird Hunting Stamp Act authorizes the
Secretary of the Interior to acquire easements over wetland areas
suitable for migratory waterfowl breeding and nesting grounds.
Section 3 of the Wetlands Act of 1961 (Loan Act) provides that no
land suitable for waterfowl habitats can be acquired with money
from the fund established for such acquisitions unless the
acquisition "has been approved" by the Governor or an appropriate
agency of the State in which the land is located. Between 1961 and
1977, successive Governors of North Dakota consented to the
acquisition of easements covering approximately 1.6 million acres
of wetlands in that State. By 1977, the United States had obtained
easements covering about half of this acreage. In the 1970's,
however, cooperation between North Dakota and the United States
began to break down, and in 1977, North Dakota enacted statutes
restricting the United States' ability to acquire easements over
wetlands. These statutes set out certain conditions that must be
met "prior to final approval" of the acquisition of the easements,
permitted a landowner to drain any after-expanded wetland in excess
of the legal description in the easement, and limited all easements
to a maximum term of 99 years. The United States brought suit in
Federal District Court, seeking a declaratory judgment that,
inter alia, the 1977 North Dakota statutes were hostile to
federal law and could not be applied, and any easement acquired in
violation of such statutes would nevertheless be valid. The
District Court granted summary judgment for the United States, and
the Court of Appeals affirmed.
Held:
1. The consent required by § 3 of the Loan Act cannot be revoked
at the will of an incumbent Governor. To hold otherwise would be
inconsistent with the Loan Act's purpose of facilitating the
acquisition of wetlands. Here, the acquisition in question clearly
"has been approved" by North Dakota's Governors as § 3's language
provides. Nothing in the statute authorizes the withdrawal of
approval previously given. Nor does § 3's legislative history
suggest that Congress intended to permit Governors to revoke their
consent. Pp. 312-316.
2. Since § 3 of the Loan Act does not permit North Dakota to
revoke its consent outright, the State may not revoke its consent
based on noncompliance
Page 460 U. S. 301
with the conditions set forth in the 1977 legislation. And to
the extent that such legislation authorizes landowners to drain
after-expanded wetlands contrary to the terms of their easement
agreements, it is hostile to federal interests, and may not be
applied. For the same reason, the statute limiting easements to a
maximum term of 99 years may not be applied to wetlands acquired by
the United States pursuant to previously given consents. Pp.
460 U. S.
316-320.
650 F.2d 911, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, and STEVENS,
JJ., joined. O'CONNOR, J., filed an opinion concurring in part and
dissenting in part, in which REHNQUIST, J., joined,
post,
p.
460 U. S.
321.
JUSTICE BLACKMUN delivered the opinion of the Court.
Under the federal Migratory Bird Hunting Stamp Act, the
Secretary of the Interior is authorized to acquire easements over
small wetland areas suitable for migratory waterfowl breeding and
nesting grounds. Although the State of North Dakota initially
consented to the Secretary's acquisition of easements over certain
wetlands, the State now seeks to withdraw its consent and to impose
conditions on any future acquisitions. This has led to the present
litigation, for the State's present posture raises the question
whether the Secretary may proceed to acquire easements pursuant to
North Dakota's prior consent.
Page 460 U. S. 302
I
A
In 1929, the Migratory Bird Conservation Act (Conservation Act),
45 Stat. 1222, ch. 257, 16 U.S.C. § 715
et seq., became
law. By § 5 of that Act, 45 Stat. 1223, the Secretary of the
Interior was authorized to acquire land "for use as inviolate
sanctuaries for migratory birds." [
Footnote 1] Land acquisitions under the Conservation Act
are subject to certain conditions: they must be approved in advance
by the Migratory Bird Conservation Commission, §§ 2 and 5, 16
U.S.C. §§ 715a and 715d, and the State in which the land is located
must "have consented by law to the acquisition," § 7, 16 U.S.C. §
715f.
In 1934, in order to provide funding for land acquisitions under
the Conservation Act, the Migratory Bird Hunting Stamp Act (Stamp
Act), 48 Stat. 451, 16 U.S.C. § 718
et seq., was enacted.
Section 1 of the Stamp Act, 16 U.S.C. § 718a, required waterfowl
hunters to purchase migratory bird hunting stamps, commonly known
as duck stamps. By § 4, 16 U.S.C. § 718d, the proceeds from the
sale of the stamps were to form a special "migratory bird
conservation fund" (conservation fund) to be used primarily to pay
for "the location, ascertainment, acquisition, administration,
maintenance, and development" of bird sanctuaries pursuant to the
Conservation Act.
To hasten the acquisition of land suitable for waterfowl
habitats, Congress amended the Stamp Act in 1958. The price of a
duck stamp was increased, and, most important for our present
purposes, the Secretary of the Interior was authorized to expend
money from the conservation fund for a new type of property: "small
wetland and pothole areas, interests therein, and rights-of-way to
provide access thereto,"
Page 460 U. S. 303
the small areas "to be designated as
Waterfowl Production
Areas.'" Pub.L. 85-585, § 3, 72 Stat. 487, 16 U.S.C. § 718d(c).
Such waterfowl production areas could be "acquired without regard
to the limitations and requirements of the Migratory Bird
Conservation Act." Ibid. Because these waterfowl
production areas did not have to be maintained as sanctuaries,
there was no need for them to be purchased outright; the Secretary
was authorized to acquire easements prohibiting fee owners from
draining their wetlands or otherwise destroying the wetlands'
suitability as breeding grounds.
Despite the 1958 amendments, however, the proceeds from duck
stamp sales proved insufficient to acquire land at the rate
Congress deemed necessary. Accordingly, a new source of income was
provided through the Wetlands Act of 1961 (Loan Act), Pub.L.
87-383, 75 Stat. 813. Section 1 of this new Act originally
authorized sums for appropriation not to exceed $105 million for a
7-year period. [
Footnote 2]
These sums were to be added to the conservation fund in the form of
interest-free loans that were to be repaid out of duck stamp
proceeds. In addition, § 3 of the Loan Act provided that no land
could be acquired with money from the conservation fund unless
consent had been obtained from the Governor or an appropriate
agency of the State in which the land was located. [
Footnote 3]
Page 460 U. S. 304
B
The principal waterfowl breeding grounds in the continental
United States are located in four States of the northern Great
Plains -- North Dakota, South Dakota, Minnesota, and Montana.
[
Footnote 4] North Dakota, in
particular, is rich in wetlands suitable for waterfowl breeding,
and the Government's acquisition of North Dakota land has been
given high priority.
See, e.g., H.R.Rep. No. 95-1518, p. 5
(1978); S.Rep. No. 94-594, p. 3 (1976).
For the most part, North Dakota has cooperated with federal
efforts to preserve waterfowl habitats. Two years after the
Conservation Act went into effect, the State, pursuant to § 7 of
that Act, 45 Stat. 1223, 16 U.S.C. § 715f, gave its consent to
the
"acquisition by the United States . . . of such areas of land or
water, or of land and water, in the State of North Dakota, as the
United States may deem necessary for
Page 460 U. S. 305
the establishment of migratory bird reservations."
1931 N.D. Laws, ch. 207, p. 360. By 1958, the United States had
acquired more than 276,000 acres of North Dakota land for use as
migratory bird refuges. Hearings on S. 2447
et al. before
a Subcommittee of the Senate Committee on Interstate and Foreign
Commerce, 85th Cong., 2d Sess., 79-81 (1958).
When the Loan Act was passed in 1961, the United States, through
its Fish and Wildlife Service, promptly sought the necessary
gubernatorial consent from Governor Guy of North Dakota. Between
1961 and 1977, Governor Guy and his successor, Governor Link,
consented to the acquisition of easements covering approximately
1.5 million acres of wetlands. The consents specified the maximum
acreage to be acquired within each county in the State, but did not
list particular parcels. [
Footnote
5] By 1977, the Fish and Wildlife Service had obtained
easements covering about half of the total wetlands acreage
authorized by the consents. [
Footnote 6]
Page 460 U. S. 306
In the mid-1970's, cooperation between North Dakota and the
United States began to break down. The sources of the dispute are
not altogether clear; the State accuses the United States of
misleading landowners from whom it purchased easements, and of
reneging on some unrelated agreements relating to flood-control
projects.
See Record 19-20, 40; Brief for Appellant 30-33.
In any event, North Dakota enacted legislation in 1977 restricting
the United States' ability to acquire easements over wetlands. 1977
N.D. Laws, ch. 204, p. 461, and ch. 426, p. 923.
The 1977 legislation affects the acquisition of wetlands
easements in three major ways. First, § 2 of ch. 204, codified as
N.D.Cent.Code § 20.1-02-18.1 (Supp.1981), as amended by 1979 N.D.
Laws, ch. 553, § 11, p. 1412, [
Footnote 7] requires
Page 460 U. S. 307
the Governor to submit proposed wetlands acquisitions for
approval by the board of county commissioners of the county in
which the land is located. The "federal agency involved" -- here,
the United States Fish and Wildlife Service -- must provide the
county with a "detailed impact analysis," and the county, as well,
is directed to prepare an impact analysis at federal expense. If
the county does not recommend the acquisition, the Governor may not
approve it. Next, § 3 of ch. 204, codified as § 20.1-02-18.2, as
amended by 1981 N.D. Laws, ch. 258, p. 654, [
Footnote 8] authorizes the landowner
Page 460 U. S. 308
to negotiate the terms and time period of the easement acquired
by the United States, to restrict the easement "by legal
description to the land, wetland, or water areas being sought," and
to "drain any after-expanded wetland or water area in excess of the
legal description." Finally, § 1 of ch. 426, codified as
N.D.Cent.Code § 47-05-02.1 (1978), [
Footnote 9] restricts all easements to a maximum duration
of 99 years. Because these restrictions have cast doubt upon the
sufficiency of its title, the United States has acquired no
easement over North Dakota wetlands since 1977. [
Footnote 10]
Page 460 U. S. 309
In 1979, the United States brought suit in the United States
District Court for the District of North Dakota, seeking a
declaratory judgment that the 1977 state statutes were hostile to
federal law in certain respects, and could not be applied; that any
easement acquired in violation of the 1977 statutes would
nevertheless be valid; and that the legislative consent provision
of the Conservation Act, § 7, 45 Stat. 1223, 16 U.S.C. § 715f, did
not apply to the acquisition of waterfowl production areas under
the Stamp Act. The District Court granted summary judgment for the
United States, App. to Juris.Statement 16a, and the United States
Court of Appeals for the Eighth Circuit affirmed. 650 F.2d 911
(1981). [
Footnote 11] We
noted probable jurisdiction over North Dakota's appeal. 455 U.S.
987 (1982).
II
The protection of migratory birds has long been recognized as "a
national interest of very nearly the first magnitude."
Missouri
v. Holland, 252 U. S. 416,
252 U. S. 435
(1920). Since the turn of the century, the Secretaries of
Agriculture and of the Interior successively have been charged with
responsibility for "the preservation, distribution, introduction,
and restoration of game birds and other wild birds." Act of May 25,
1900, 31 Stat. 187, 16 U.S.C. § 701. A series of treaties dating
back to 1916 obligates the United States to preserve and protect
migratory birds through the regulation of hunting,
Page 460 U. S. 310
the establishment of refuges, and the protection of bird
habitats. [
Footnote 12] By
providing for the acquisition of sanctuaries and waterfowl
production areas, the Conservation Act and the Stamp Act play a
central role in assuring that our Nation's migratory birds will
continue to flourish.
In the absence of federal legislation to the contrary, the
United States unquestionably has the power to acquire wetlands for
waterfowl production areas, by purchase or condemnation, without
state consent.
Paul v. United States, 371 U.
S. 245,
371 U. S. 264
(1963);
Kohl v. United States, 91 U. S.
367,
91 U. S.
371-372 (1876). Here, however, Congress has conditioned
any such acquisition upon the United States' obtaining the consent
of the Governor of the State in which the land is located.
[
Footnote 13] North Dakota
concedes that its Governors, at various
Page 460 U. S. 311
times since 1961, have consented to the acquisition of easements
over 1.5 million acres of North Dakota wetlands. The issue before
us is whether North Dakota may revoke its consent to the
acquisition of further easements in the State, and whether North
Dakota, by statute, may impose conditions and restrictions on the
United States' power to acquire easements. [
Footnote 14]
Page 460 U. S. 312
A
North Dakota's central argument is that the gubernatorial
consent required by 16 U.S.C. § 715k-5, once given, may be revoked
by the State at will. North Dakota reads § 715k-5 to require not
only that the Governor have consented to the acquisition of land
for waterfowl production areas, but also that the Governor (and his
successors in office) must continue to consent until the moment the
land is actually acquired. Thus, although the United States has
acquired easements over only half the acreage authorized by
Governors Guy and Link, North Dakota asserts that it can terminate
the United States' power to acquire the remainder. [
Footnote 15] The United States takes the
position that § 715k-5 does not permit a State to revoke its
consent at will; once consent has been given, "the role assigned to
the state by Congress has been exhausted." Brief for United States
24.
As with any case involving statutory interpretation, "we state
once again the obvious when we note that, in determining the scope
of a statute, one is to look first at its language."
Dickerson
v. New Banner Institute, Inc., ante at
460 U. S. 110.
See Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U. S. 11,
444 U. S. 19
(1979). "Absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as conclusive."
Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
447 U. S. 102,
447 U. S. 108
(1980). The language of § 715k-5 is uncomplicated; it provides that
money from the conservation fund shall not be used to acquire land
"unless the acquisition thereof has been approved" by the Governor
or the appropriate state agency. In this case, the
Page 460 U. S. 313
acquisition of approximately 1.5 million acres of wetlands
clearly "has been approved" by North Dakota's Governors. Nothing in
the statute authorizes the withdrawal of approval previously given.
[
Footnote 16]
Nor does the legislative history of § 715k-5 suggest that
Congress intended to permit Governors to revoke their consent.
Before 1961, neither legislative nor gubernatorial consent was
required prior to the acquisition of wetlands for waterfowl
production areas. State legislative consent was a prerequisite to
the acquisition of bird sanctuaries, § 715f, but waterfowl
production areas were expressly exempted from this requirement, §
718d(c). Nonetheless, the United States followed an informal
practice of obtaining agreement from the Governor or appropriate
state agency before acquisition. The gubernatorial consent
provision was intended simply to incorporate this practice. 107
Cong.Rec. 17171 (1961) (remarks of Sen. Magnuson);
id. at
17172 (remarks of Sen. Hruska). There is no indication in the
legislative history or elsewhere that, under this prior practice, a
Governor could withdraw consent already given. [
Footnote 17]
Page 460 U. S. 314
In the absence of any evidence to the contrary, we must conclude
that the consent required by § 715k-5 cannot be revoked at the will
of an incumbent Governor. To hold otherwise would be inconsistent
with the very purpose behind the Loan Act of which § 715k-5 is a
part. The Loan Act was expressly intended to facilitate the
acquisition of wetlands by making available an additional source of
funds. The legislative history is replete with references to the
need to preserve the Nation's wetlands by bringing four to five
million additional acres under federal control.
See
Hearings on S. 2187
et al. before the Merchant Marine and
Fisheries Subcommittee of the Senate Committee on Commerce, 87th
Cong., 1st Sess., 14-19, 23-24, 28-31, 33-39 (1961); S.Rep. No.
705, 87th Cong., 1st Sess., 2 (1961); H.R.Rep. No. 545, 87th Cong.,
1st Sess., 1-2 (1961). Obviously, this acquisition could not take
place overnight; careful planning over many years was anticipated.
See S.Rep. No. 705,
supra, at 2. If consent under
§ 715k-5 were revocable, the United States' ability to engage in
such planning would be severely hampered. A detailed federal
program involving the estimate of needs, setting of priorities,
allocation of funds, and negotiations with landowners could be
negated in an instant by a Governor's decision that the politics of
the moment made further federal acquisitions undesirable.
Our conclusion in this regard is strengthened by the fact that,
at the time of its enactment, the gubernatorial consent provision
was not at all controversial. It was added by the Senate Committee
on Commerce without explanation,
see S.Rep. No. 705,
supra, at 3, and was accepted by the House of
Representatives without explanation or discussion,
see
H.R.Conf.Rep. No. 1184, 87th Cong., 1st Sess., 1 (1961); 107
Cong.Rec. 21184 (1961). The only discussion of the provision
Page 460 U. S. 315
came on the Senate floor, when that body was assured that it did
no more than formalize the existing practice of gaining state
approval prior to acquiring land. We are unwilling to assume that
Congress, while expressing its firm belief in the need to preserve
additional wetlands, so casually would have undercut the United
States' ability to plan for their preservation. Clearly, Congress
intended the States to play an important role in the planning
process. But once plans have been made and the Governor's approval
has been freely given, the role of the State indeed is at an end.
It is then up to the United States to choose how best to use its
resources in putting its acquisition plans into effect.
Although it has been intimated that a Governor's consent might
become revocable if the United States were to delay unreasonably
its land acquisitions pursuant to the consent,
see Brief
for United States 26; Tr. of Oral Arg. 35, we need not reach that
issue here. In this case, there has been no unreasonable delay.
Until North Dakota's legislation interfered in 1977, the United
States had pursued diligently its program of acquiring wetlands
easements in North Dakota. The acreage fluctuated somewhat from
year to year, but the acquisitions each year were substantial.
[
Footnote 18] In 1958, when
Congress first authorized the Secretary of the Interior to acquire
waterfowl production areas, it was generally anticipated that the
United States' acquisition program would take a minimum of 20 to 25
years to complete. [
Footnote
19] The acquisition
Page 460 U. S. 316
program had been underway for only 16 years in 1977, a timespan
well within the limits contemplated by Congress.
B
We next consider North Dakota's 1977 legislation, which purports
to impose conditions on the United States' power to acquire further
wetlands easements. Because the statutes at issue raise somewhat
different concerns, we discuss each in turn.
1.
N.D.Cent.Code § 20.1-0218.1 (Supp.1981). This
statute sets out certain conditions that must be met "prior to
final approval" of the acquisition of wetlands easements. The only
sanction provided in § 20.1-02-18.1 for failure to comply with its
conditions is that consent for the acquisitions will be refused.
North Dakota explains that this represents the State's decision "to
qualify or condition any consent to future acquisitions." Brief for
Appellant 33;
see id. at 35.
We thus need not consider in this case whether the gubernatorial
consent provision, 16 U.S.C. § 715k-5, permits North Dakota to
impose these conditions on any consent it chooses to give in the
future. [
Footnote 20] At
issue here is the status of
Page 460 U. S. 317
acquisitions authorized by consents already given. We do not
understand the State to argue that § 20.1-02-18.1 imposes
retroactive conditions on these prior consents. By its terms, the
statute has no application to the acquisition of easements for
which consent previously has been given, because nothing in the
statute purports to limit the United States' power to acquire land
once "final approval" has been obtained. Moreover, any attempt to
impose retroactive conditions clearly would be unavailing. We have
ruled above that once the requisite gubernatorial consent has been
obtained, it may not be revoked. Since 16 U.S.C. § 715k-5 does not
permit North Dakota to revoke its consent outright, North Dakota
may not revoke its consent based on noncompliance with the
conditions set forth in N.D.Cent.Code § 20.1-02-18. 1
(Supp.1981).
2.
N.D.Cent.Code § 20.1-02-18.2 (Supp.1981). The United
States does not challenge those portions of § 20.102-18.2 that
permit a landowner to negotiate the conditions of an easement and
restrict the scope of the easement to a particular legal
description. The United States does object, however, to that part
of § 20.1-02-18.2(2) that permits a landowner to "drain any
after-expanded wetland or water area in excess of the legal
description in the . . . easement. . . ." The United States'
standard easement agreement contains a clause prohibiting the
draining of after-expanded wetlands,
see n 6,
supra, and § 20.1-02-18.2(2)
might be read to void such clauses even when agreed to by the
landowner.
This Court addressed a similar situation in
United States v.
Little Lake Misere Land Co., 412 U. S. 580
(1973). In that case, the United States had exercised its authority
under the Conservation Act to acquire land in Louisiana for use as
a wildlife refuge. Mineral rights were reserved to the prior
Page 460 U. S. 318
landowners for a period of 10 years, subject to extensions under
certain conditions. A Louisiana statute barred the reversion of the
mineral rights to the United States, and thus in effect extended
the prior landowners' mineral rights indefinitely.
Applying
Clearfield Trust Co. v. United States,
318 U. S. 363
(1943), this Court concluded that, because the United States'
acquisition of land under the Conservation Act "is one arising from
and bearing heavily upon a federal regulatory program . . . , the
choice-of-law task is a federal task for federal courts." 412 U.S.
at
412 U. S. 592.
The key factors in
Little Lake Misere were that
"[w]e deal[t] with the interpretation of a land acquisition
agreement (a) explicitly authorized, though not precisely governed,
by the Migratory Bird Conservation Act and (b) to which the United
States itself [was] a party."
Id. at
412 U. S. 594.
Although the present case involves acquisitions under the Stamp
Act, rather than the Conservation Act, the federal interests at
stake are the same. Thus, the choice of applicable law presents a
federal question. Although state law may be borrowed if
appropriate, "specific aberrant or hostile state rules do not
provide appropriate standards for federal law."
Id. at
412 U. S.
596.
Because the Louisiana statute at issue in
Little Lake
Misere was "plainly hostile to the interests of the United
States,"
id. at
412 U. S. 597,
the Court refused to apply it. In language equally applicable to
the present case, the Court said:
"To permit state abrogation of the explicit terms of a federal
land acquisition would deal a serious blow to the congressional
scheme contemplated by the Migratory Bird Conservation Act, and
indeed all other federal land acquisition programs. These programs
are national in scope. They anticipate acute and active bargaining
by officials of the United States charged with making the best
possible use of limited federal conservation appropriations.
Certainty and finality are indispensable in
Page 460 U. S. 319
any land transaction, but they are especially critical when, as
here, the federal officials carrying out the mandate of Congress
irrevocably commit scarce funds."
Ibid.
To the extent that § 20.1-02-18.2(2) authorizes landowners to
drain after-expanded wetlands contrary to the terms of their
easement agreements, we must conclude that it is equally hostile to
federal interests, and may not be applied to easements acquired
under previously given consents. [
Footnote 21] The United States is authorized to
incorporate into easement agreements such rules and regulations as
the Secretary of the Interior deems necessary for the protection of
wildlife, 16 U.S.C. § 715e, and these rules and regulations may
include restrictions on land outside the legal description of the
easement.
See Kleppe v. New Mexico, 426 U.
S. 529,
426 U. S. 546
(1976);
Canfield v. United States, 167 U.
S. 518,
167 U. S.
525-526 (1897). To respond to the inherently fluctuating
nature of wetlands, the Secretary has chosen to negotiate easement
agreements imposing restrictions on after-expanded wetlands as well
as those described in the easement itself. As long as North Dakota
landowners are willing to negotiate such agreements, the agreements
may not be abrogated by state law. [
Footnote 22]
3.
N.D.Cent.Code § 47-05-02.1 (1978). Much the same
analysis persuades us that this statute, which limits
nonappurtenant
Page 460 U. S. 320
easements to a maximum term of 99 years, may not be applied to
wetlands easements acquired by the United States under consents
previously given pursuant to the Stamp Act. [
Footnote 23] The United States' commitment to
the protection of migratory birds will not cease after 99 years
have passed. This commitment has been incorporated into law for
over 80 years and has been expressed in treaties since 1916, and
the need to preserve migratory bird habitats is now no less than
before.
To ensure that essential habitats will remain protected, the
United States has adopted the practice of acquiring permanent
easements whenever possible. Permanent easements are authorized by
the gubernatorial consents given from 1961 to 1977, [
Footnote 24] and the United States
apparently has had no difficulty in negotiating permanent easements
with North Dakota landowners. The automatic termination of federal
wetlands easements after 99 years would make impossible the
"[c]ertainty and finality" that we have regarded as "critical when
. . . federal officials carrying out the mandate of Congress
irrevocably commit scarce funds."
United States v. Little Lake
Misere Land Co., 412 U.S. at
412 U. S. 597.
We conclude that § 47-05-02.1 is hostile to federal interests, and
may not be applied.
See 412 U.S. at
412 U. S. 596;
United States v. Albrecht, 496 F.2d 906, 911 (CA8
1974).
III
The District Court and the Court of Appeals held that
gubernatorial consent was not required prior to federal
acquisition
Page 460 U. S. 321
of wetlands easements, and that North Dakota's 1977 legislation
could not be applied to any easements acquired under the Stamp Act.
We conclude that, although gubernatorial consent is required, it
has been given here, and cannot be revoked. We also conclude that
North Dakota's 1977 legislation cannot restrict the United States'
ability to acquire easements pursuant to consent previously given.
To this extent, we affirm the judgment below.
It is so ordered.
[
Footnote 1]
Section 5 was amended by § 5(a) of the Fish and Wildlife
Improvements Act of 197, Pub.L. 95-616, 92 Stat. 3113, with minor
changes from the language quoted in the text. The sense of that
language, however, was not altered.
See 16 U.S.C. § 715d
(1976 ed., Supp. V).
[
Footnote 2]
The authorization loan limit was increased to $200 million by §
2(a) of the Wetlands Loan Extension Act of 1976, 90 Stat. 189, 16
U.S.C. § 715k-3.
[
Footnote 3]
Section 3 reads in relevant part:
Provided further, That no land shall be acquired with
moneys from the migratory bird conservation fund unless the
acquisition thereof has been approved by the Governor of the State
or appropriate State agency.
75 Stat. 813, 16 U.S.C. § 715k-5. This proviso is in addition to
the Conservation Act's requirement, in its § 7, that the State
"shall have consented by law" to the acquisition of land for
inviolate bird sanctuaries. 45 Stat. 1223, 16 U.S.C. § 715f. The
latter requires consent by the legislature; the former requires
consent by the Governor or the "appropriate State agency."
[
Footnote 4]
When the glaciers retreated from the northern Great Plains at
the end of the last ice age, they left in their wake thousands of
shallow depressions. These depressions, known as prairie potholes,
provide excellent breeding grounds for migratory ducks. In
United States v. Albrecht, 496 F.2d 906 (CA8 1974), the
Court of Appeals described the characteristics of a prairie pothole
region and its advantages for breeding ducks:
"Each square mile of such land is dotted by approximately 70 to
80 potholes of three to four feet deep. . . . [On certain types of
land] the potholes usually retain water through July or August, and
therefore provide an excellent environment for the production of
aquatic invertebrates and aquatic plants, the basic foods for
breeding adult ducks and their offspring. Essential to the
maintenance of the land as a waterfowl production area is the
availability of shallow water in these numerous potholes during the
usually drier summer months. On the other hand, too much water, as
a lake area with its deeper waters, does not provide the proper
habitat for many species of duck to rear their young. Also, for the
protection of their young, many species of duck prefer to be
isolated in a small pothole, rather than to share a large
lake."
Id. at 908-909.
See generally Kantrud &
Stewart, Use of Natural Basin Wetlands By Breeding Waterfowl in
North Dakota, 41 J.Wildlife Management 243 (1977); Prairie
Potholes: Draining the Duck Hatchery, National Wildlife (Oct.-Nov.
1981) p. 6.
[
Footnote 5]
The consents were in written form prepared by the Fish and
Wildlife Service. Each covered a separate county, and read
substantially as follows:
"I, ________ , Governor of the State of North Dakota, in
accordance with the provisions of the Act of October 4, 1961, 75
Stat. 813, hereby grant approval to the acquisition of easements by
the United States of America of any lands within the county of
______, State of North Dakota, for Waterfowl Production Area
purposes not to exceed ___ acres of wetlands."
App. 3, 55. Some of the forms were signed by the North Dakota
Game and Fish Commissioner as the authorized representative of the
Governor.
Id. at 4-5, 47.
[
Footnote 6]
The typical easement agreement contained a legal description of
a parcel of land, and imposed restrictions on all wetland areas
within the parcel "now existing or subject to recurrence through
natural or man-made causes," including "any enlargements of said
wetland areas resulting from normal or abnormal increased water."
The easements prohibit the owner from draining, filling, leveling
or burning the wetlands, but permit farming and other activities
whenever the wetlands "are dry of natural causes."
Id. at
14-16;
seeApp. to Juris.Statement 6a-7a.
[
Footnote 7]
North Dakota Cent. Code § 20.1-02-18.1, as amended (Supp.1981),
provides:
"Federal wildlife area acquisitions -- Submission to county
commissioners, opportunity for public comment, and impact analysis
required. The governor, the game and fish commissioner, or their
designees, responsible under federal law for final approval of
land, wetland, and water acquisitions by the United States
department of the interior, its bureaus or agencies, for waterfowl
production areas, wildlife refuges or other wildlife or waterfowl
purposes, shall submit the proposed acquisitions to the board of
county commissioners of the county or counties in which the land,
wetland, and water areas are located for the board's
recommendations. An affirmative recommendation by the board must be
obtained prior to final approval of all such proposed acquisitions,
whether by transfer of title, lease, easement, or servitude."
"The board of county commissioners of the county affected, or a
designee or designees of the board, shall, within twenty-one days
of receipt of an acquisition proposal, physically inspect the
proposed acquisition areas. The board shall give public notice of
the date, hour, and place where the public may comment on the
proposed acquisitions. The notice shall be published once each week
for two successive weeks in the official newspaper of the county or
counties in which the land and water areas are located. The notice
shall set forth the substance of the proposed action, and shall
include a legal description of the proposed acquisitions. The board
of county commissioners shall make its recommendations within sixty
days after receipt of an acquisition proposal."
"A detailed impact analysis from the federal agency involved
shall be included with the acquisition proposal for board of county
commissioner consideration in making recommendations. Such analysis
shall include, but shall not be limited to, the recreational and
wildlife impacts. In addition, the county agent of the affected
county or counties shall prepare an impact analysis for board of
county commissioner consideration which shall include the fiscal,
social, and agricultural impacts of the proposed acquisitions. The
department of the interior shall reimburse the county or counties
for any expenses incurred by the county agent in preparing the
analysis. The analyses shall also be forwarded to the state federal
aid coordinator office which shall furnish copies to all interested
state agencies and political subdivisions, which agencies and
political subdivisions shall have thirty days to review the
analyses and return their comments to the state federal aid
coordinator office. Upon expiration of the thirty-day period, all
comments received by the state federal aid coordinator office shall
be forwarded to the federal agency involved and to the state
official or agency responsible for final acquisition approval. The
federal agency may, after consideration of such comments, file a
final impact analysis with the governor, the board of county
commissioners, and any other state official or agency responsible
for final acquisition approval."
[
Footnote 8]
North Dakota Cent. Code § 20.1-02-18.2, as amended (Supp.1981),
provides:
"Negotiation of leases, easements, and servitudes for wildlife
production purposes. A landowner may negotiate the terms of a
lease, easement, or servitude for land, wetland, or water areas
sought to be acquired by the United States department of the
interior, its bureaus or agencies, with moneys from the migratory
bird conservation fund [16 U.S.C. 718d] for use as waterfowl
production areas, wildlife refuges, or for other wildlife purposes.
A landowner may:"
"1. Negotiate the time period of the lease, easement, or
servitude being sought."
"2. Restrict a lease, easement, or servitude by legal
description to the land, wetland, or water areas being sought, and
may drain any after-expanded wetland or water area in excess of the
legal description in the lease, easement, or servitude."
"Failure by the department of the interior, its bureaus or
agencies, to agree to and comply with the above provisions shall
nullify North Dakota's consent to the federal Act under section
20.1-02-18."
As originally enacted, § 20.1-02-18.2 also provided that any
easement would terminate upon death of the landowner or a change in
ownership. 1977 N.D. Laws, ch. 204, § 3, p. 463. This provision was
repealed by 1981 N.D. Laws, ch. 258, § 1, p. 654.
[
Footnote 9]
Section 47-05-02.1 provides in relevant part:
"Regulations governing easements, servitudes, or nonappurtenant
restrictions on the use of real property. -- Real property
easements, servitudes, or any nonappurtenant restrictions on the
use of real property, which become binding after July 1, 1977,
shall be subject to the regulations contained in this section.
These regulations shall be deemed a part of any agreement for such
interests in real property whether or not printed in a document of
agreement."
* * * *
"'2. The duration of the easement, servitude, or nonappurtenant
restriction on the use of real property shall be specifically set
out, and in no case shall the duration of any interest in real
property regulated by this section exceed ninety-nine years."
[
Footnote 10]
In 1981, while this case was pending in the Court of Appeals,
North Dakota added a further provision forbidding any new federal
acquisition of land for a migratory bird reservation, and
suspending the Governor's authority to consent to any acquisition
from the conservation fund. 1981 N.D. Laws, ch. 258, § 2, p. 654,
codified as N.D.Cent.Code § 20.1-02-18.3 (Supp.1981).
[
Footnote 11]
The Court of Appeals held that neither legislative nor
gubernatorial consent was required prior to the acquisition of
waterfowl production areas, and that even if gubernatorial consent
were required, it had been given here, and could not be revoked.
650 F.2d at 916. The Court of Appeals also concluded that the
challenged North Dakota statutes were void "[t]o the extent they
encumber the federal statutes which provide for the acquisition of
waterfowl habitat."
Id. at 918.
[
Footnote 12]
Convention for the Protection of Migratory Birds, United
States-Great Britain, 39 Stat. 1702, T.S. No. 628 (1916);
Convention for the Protection of Migratory Birds and Game Mammals,
United States-Mexico, 50 Stat. 1311, T.S. No. 912 (1936);
Convention for the Protection of Migratory Birds and Birds in
Danger of Extinction, and Their Environment, United States-Japan,
[1974] 25 U.S.T. 3331, T.I.A.S. No. 7990 (1972); Convention
Concerning the Conservation of Migratory Birds and Their
Environment, United States-Union of Soviet Socialist Republics,
[1976-1977] 29 U.S.T. 4647, T.I.A.S. No. 9073 (1976). Habitat
protection is specifically mandated by the treaties with the Soviet
Union, Art. IV, 29 U.S.T. at 4653-4654, and Japan, Art. VI, 25
U.S.T. at 3335.
[
Footnote 13]
Despite some confusion on this issue in the District Court and
the Court of Appeals,
see App. to Juris.Statement 11a; 650
F.2d at 916, the parties now agree that gubernatorial consent is
required.
See Brief for United States 16, and n. 11.
Section 4 of the Stamp Act, as amended in 1958, permits the
acquisition of waterfowl production areas "without regard to the
limitations and requirements of the Migratory Bird Conservation
Act." Pub.L. 85-585, § 3, 72 Stat. 487, 16 U.S.C. § 718d(c). The
Conservation Act, ch. 257, 45 Stat. 1222, is codified at 16 U.S.C.
§§ 715-715k and 715n-715r. The District Court and the Court of
Appeals read the gubernatorial consent requirement -- codified at §
715k-5 -- as part of the Conservation Act, and concluded that it
did not apply to the acquisition of waterfowl production areas.
This reading of the statute, we have concluded, is incorrect. The
gubernatorial consent provision was enacted in 1961 as § 3 of the
Loan Act. 75 Stat. 813. It has never been a part of the
Conservation Act. Although the codifiers of the United States Code
chose to place the gubernatorial consent provision in the midst of
the Conservation Act's provisions, that choice, "made by a codifier
without the approval of Congress . . . should be given no weight."
United States v. Welden, 377 U. S. 95,
377 U. S. 99, n.
4 (1964). Because the gubernatorial consent provision is not one of
the "requirements of the Migratory Bird Conservation Act," 16
U.S.C. § 718d(c), it does apply whenever waterfowl production areas
are acquired with duck stamp funds.
[
Footnote 14]
North Dakota advances two preliminary arguments, which we find
unpersuasive. The State first asserts that the gubernatorial
consents given between 1961 and 1977 are invalid, because they do
not specify the particular parcels to be acquired. The language of
§ 715k-5 does not suggest that parcel-by-parcel consent is
necessary, and the legislative history tells us only that § 715k-5
requires consent "as to the nature of the lands and the acreage
involved." 107 Cong.Rec. 17171 (1961) (remarks of Sen. Magnuson).
The county-by-county consents given by Governors Guy and Link
satisfied this standard. They specified both the "nature of the
lands . . . involved,"
i.e., wetlands, and the maximum
acreage to be acquired in each county.
North Dakota next argues that the gubernatorial consents, if
valid, have already been exhausted by acquisitions prior to 1977.
This argument stems from the practice of including within each
easement agreement the legal description of the entire parcel on
which the wetlands are located, rather than merely the wetlands
areas to which the easement restrictions apply. If the entire
parcels are counted toward the acreage permitted by the
gubernatorial consents, the United States already has acquired
nearly 4.8 million acres, far more than the 1.5 million acres
authorized. The United States has conceded as much in its answers
to North Dakota's interrogatories. App. 49 ("The total acreage
described in the permanent easements . . . is 4,788,300 acres. . .
."). As the easement agreements make clear, however, the
restrictions apply only to wetlands areas, and not to the entire
parcels. The consents obtained by the United States authorize it to
acquire up to 1.5 million "acres of wetlands."
See
n 5,
supra. The fact
that the easement agreements include legal descriptions of much
larger parcels does not change the acreage of the wetlands over
which easements have been acquired.
[
Footnote 15]
In the District Court and the Court of Appeals, North Dakota
took the position that its prior consents had been revoked.
SeeApp. 72. At oral argument, North Dakota informed us
that, although the present Governor has not formally revoked the
consents, he intends to engage in that formality if this Court
holds that revocation is authorized. Tr. of Oral Arg. 28.
[
Footnote 16]
Cf. United States v. Unzeuta, 281 U.
S. 138,
281 U. S.
142-143 (1930) (State may not revoke its consent to
exercise of jurisdiction by the United States).
[
Footnote 17]
Although the question of revocability did not arise during the
Senate debates, the Senate's brief discussion of the gubernatorial
consent provision suggests that consent, once obtained, was
expected to remain effective for as long as necessary. Senator
Magnuson commented that he could not
"conceive of any acreage of wetlands that it is intended to
purchase in the next 3 or 4 years that has not already had the
joint approval of all the States and everyone else involved."
107 Cong.Rec. 17172 (1961). Senator Hruska, a member of the
Migratory Bird Conservation Commission, confirmed that, when the
Commission met to approve land acquisitions,
"[t]here has already been processed before that time the area of
agreement between the Federal agencies and the State agencies which
makes the approval possible."
Ibid. Senators Magnuson and Hruska each envisioned
precisely the sequence of events that has occurred here: the United
States would develop a general plan for the acquisition of
wetlands, the plan would be submitted to the Governor or
appropriate state agency for approval, and, if approval was given,
the United States would proceed to acquire wetlands pursuant to
that approval -- over the course of years, if need be.
[
Footnote 18]
See United States Dept. of the Interior, Annual Report
of Lands Under Control of the U.S. Fish and Wildlife Service
(1974-1977) (Table 4, Waterfowl Production Areas); United States
Dept. of the Interior, Annual Report of Lands Under Control of the
Bureau of Sport Fisheries and Wildlife (1961-1973) (Table 4,
Waterfowl Production Areas).
[
Footnote 19]
See, e.g., H.R.Rep. No. 2182, 85th Cong., 2d Sess., 2
(1958); Hearings on H.R. 12006 before the Subcommittee on Fisheries
and Wildlife Conservation of the House Committee on Merchant Marine
and Fisheries, 85th Cong., 2d Sess., 5 (1958) (statement of Rep.
Reuss);
id. at 26 (testimony of Ross Leffler, Assistant
Secretary for Fish and Wildlife, Dept. of the Interior);
id. at 37 (statement of Daniel H. Janzen, Director of
Bureau of Sport Fisheries and Wildlife, Dept. of the Interior);
id. at 47 (statement of Rep. Metcalf); Hearings on S. 2447
et al. before a Subcommittee of the Senate Committee on
Interstate and Foreign Commerce, 85th Cong., 2d Sess., 85 (1958)
(comments of Sen. Magnuson).
JUSTICE O'CONNOR finds this legislative history unpersuasive,
primarily because the gubernatorial consent provision was not added
until 1961, three years after initial authorization of the
acquisition of land for waterfowl production areas.
Post
at
460 U. S. 322.
But as we have explained
supra at
460 U. S. 313,
the gubernatorial consent provision was intended merely to
formalize the prior practice of obtaining consent prior to the
acquisition of any land under the Stamp Act.
[
Footnote 20]
Compare United States v. Williams, 302 U. S.
46,
302 U. S. 50
(1937) (federal statute, requiring parental consent prior to
minor's enlistment, does not confer right to impose conditions on
consent),
with, e.g., James v. Dravo Contracting Co.,
302 U. S. 134,
302 U. S.
146-147 (1937) (Article I, § 8, cl. 17, of Constitution,
requiring state consent prior to assumption of federal jurisdiction
over land, does confer right to impose conditions on consent).
[
Footnote 21]
Because this case concerns only the acquisition of easements
under consents already given, we need not decide whether §
20.1-02-18.2(2) could be applied to easements acquired under
consents North Dakota may choose to give in the future.
See n 20,
supra.
[
Footnote 22]
United States v. Burnison 339 U. S.
87 (1950), on which North Dakota relies, is not to the
contrary. In
Burnison, the Court held that a State's
traditional power to control the testamentary transfer of property
included the power to prohibit testamentary gifts to the United
States. The Court stated specifically that its holding did not
"affect the right of the United States to acquire property by
purchase or eminent domain in the face of a prohibitory statute of
the state."
Id. at
339 U. S. 93, n.
14;
see United States v. Fox, 94 U. S.
315,
94 U. S. 320
(1877).
[
Footnote 23]
Although N.D.Cent.Code § 47-05-02.1 (1978) applies to all
nonappurtenant easements, it was apparently enacted in response to
dissatisfaction with the United States' acquisition of permanent
easements over wetlands.
See Report of the Committee on
Agriculture submitted to the North Dakota Legislative Council
(Nov.1976), reprinted at Record 22, 26; App. 39.
[
Footnote 24]
We need not decide whether future consents could be limited so
as to authorize the acquisition of 99-year easements only, or
whether § 4705-02.1 could be applied to easements acquired under
consents given in the future.
See nn.
20 and |
20
and S. 300fn21|>21,
supra.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins, concurring
in part and dissenting in part.
I agree with the Court that gubernatorial consent is required
for the acquisition of wetlands easements, that the required
consent was given in this case, and that North Dakota may not
simply revoke its consent at will. I disagree with the Court,
however, in its holding that the United States acquired its
easements pursuant to the consents within a reasonable time as a
matter of law. I would remand this case in order to allow the lower
courts an opportunity to determine whether the Federal Government
delayed unreasonably in making its acquisitions. Because I would
remand, and because I believe that the Court decides another issue
that is not properly before the Court, I dissent in part.
First, in its brief, the Government concedes that
"Congress must have assumed that the Secretary would be able to
rely on the continued effectiveness --
at least for a
reasonable period of time -- of gubernatorial consents."
Brief for United States 26 (emphasis added). [
Footnote 2/1] The Government's concession on this
point reflects the position, correct in my view, that Congress did
not intend that gubernatorial consents, once given, could never be
withdrawn even if the United States failed to acquire its easements
within a reasonable time. Although there is virtually no
legislative history concerning the consent provision in 16 U.S.C.
715k-5, the provision represents
Page 460 U. S. 322
an attempt to give to the States a meaningful right to control
to some extent federal acquisition of easements in light of the
unquestioned federal authority to take the land through
condemnation procedures. [
Footnote
2/2]
See Paul v. United States, 371 U.
S. 245,
371 U. S. 264
(1963). Congress surely did not intend to bind the States forever
by their consents if the Federal Government failed to act on them.
Permanent irrevocable consents would frustrate legitimate state
land use planning, just as consents revocable at will would
frustrate federal protection of migratory wildfowl. Therefore, I
agree with the position taken by the United States that the State's
consent is irrevocable for a reasonable time after the consent is
given.
The Court finds it unnecessary to decide whether the consent is
revocable after the lapse of a reasonable time because it concludes
that a reasonable time has not elapsed in this case. The Court
bases this factual judgment primarily on statements in the
legislative history indicating that Congress anticipated that the
wetlands "acquisition program would take a minimum of 20 to 25
years to complete."
Ante at
460 U. S. 315
(footnote omitted). Although the Court correctly points out that
such statements appear in the House Report and various hearings
concerning the 1958 amendment to the Stamp Act, those statements
cannot be used to show that, in adding the gubernatorial consent
provision
in 1961, Congress intended consent to be
irrevocable for the period necessary to complete all previously
described acquisition objectives regardless of its duration. The
Court merely assumes that the estimated time period for completing
the acquisition program generally is a "reasonable time" for
purposes of determining whether the Government has acted reasonably
in exercising
Page 460 U. S. 323
its consents in this particular case. There is nothing in the
legislative history of either the 1958 amendment to the Stamp Act,
or the 1961 addition of the consent provision, to support the
Court's conclusion on this point.
The Court acknowledges that the acquisition program involved in
this case had been underway for 16 years by the time the Government
ceased its acquisitions as a result of the state legislation that
is in issue. This time period is not, in my view, "reasonable"
as a matter of law, and I would remand the issue in order
to give the courts below an opportunity to decide whether the
Federal Government acted reasonably in this case.
Second, for the first time in this Court, North Dakota argues
that even if it may not revoke its consent to easement acquisition,
the United States has already acquired easements over acreage in
excess of the consents that were given. The Court resolves this
dispute by holding that North Dakota's argument fails because
"the easement agreements make clear . . . [that] the
restrictions apply only to wetlands areas, not to the entire
parcels. . . . The fact that the easement agreements include legal
descriptions of much larger parcels does not change the acreage of
the wetlands over which easements have been acquired."
Ante at
460 U. S.
311-312, n. 14.
This issue clearly was not raised below. In its complaint filed
in the District Court for North Dakota, the United States stated
that its total easement acreage to date in North Dakota was 764,522
acres. App. 31. This claim was repeated in answers to North
Dakota's interrogatories.
Id. at 49. North Dakota never
challenged that claim, and stipulated that the District Court had
been provided with all evidentiary material necessary to resolve
the cross-motions for summary judgment concerning the necessity
for, and revocability of, gubernatorial consent.
Id. at
71-73. Indeed, North Dakota stipulated that its position was that
the consent had been revoked, and that the particular
gubernatorial
Page 460 U. S. 324
consents were themselves legally inadequate for easement
acquisition.
Id. at 71-72. Therefore, the issue concerning
exhaustion of consent was not raised below, and is not properly
before the Court in this case.
Because I would remand to enable the lower courts to determine
whether the United States acted reasonably in obtaining its
wetlands easements, and because the Court decides an issue that is
not, in my view, properly before the Court, I am unable to join the
Court's opinion in its entirety.
[
Footnote 2/1]
See also Brief for United States 14, 27; Tr. of Oral
Arg. 35, 41.
[
Footnote 2/2]
The only explicit reference to the consent provision is made by
Senator Magnuson, who stated that there could be no acquisition
"unless the Federal Government and the State involved had a
complete agreement . . . as to the nature of the lands and the
acreage involved." 107 Cong.Rec. 17171 (1961).