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North Dakota v. United States

ELR Citation: 13 ELR 20312
Nos. No. 81-773, 460 U.S. 300/18 ERC 1713/(U.S., 03/07/1983) Aff'd

Affirming the Eighth Circuit, 11 ELR 20846, the Supreme Court rules that North Dakota may not revoke its consent to the United States' acquisition of waterfowl production areas within the state under the Migratory Bird Hunting Stamp Act with funds from the Wetlands Act of 1961 (Loan Act). The Stamp Act authorizes the United States to acquire easements in wetlands areas suitable for waterfowl production. However, the Loan Act, which provides additional funds for the acquisitions under the Stamp Act, requires state consent. Between 1961 and 1977, North Dakota consented to federal acquisitions of easements, but in 1977 the state enacted legislation restricting such acquisitions. The Court rules that once the state consents, neither the Loan Act nor its legislative history indicates that the state may revoke its consent at will. To allow revocation would be inconsistent with the purpose of the Loan Act to allow for careful planning in preserving wetlands. Furthermore, while unreasonable delay by the United States may be grounds for revocation, no such delay has occurred in this case.

Addressing the state statute, the Court rules that the state may not impose conditions on previously approved acquisitions since it cannot revoke its consent even if the conditions are not met. The Court also rules that the United States may incorporate into easement agreements restrictions on wetlands outside the bounds of the easement itself. Finally, the Court rules that the provision in the state statute that limits easements to 99 years may not be applied to easements acquired under consents previously given.

Two justices concur in the rulings that state consent is required, that consent was given in this case, and that the state may not revoke its consent at will. However, they dissent from the ruling that the United States acquired its easements within a reasonable time and would remand to the district court to determine if the United States acted reasonably.

Counsel for Appellant
Robert Wefald, Attorney General
State Capitol, Bismark ND 58505
(701) 224-2210

Murray G. Sagsveen, Special Ass't Attorney General; David E. Engdahl
Zuger & Bucklin
P.O. Box 1695, Bismark ND 58501
(701) 223-2711

Counsel for Appellee
Rex E. Lee, Solicitor General; Barbara E. Etkind, Louis F. Claiborne
Department of Justice, Washington DC 20530
(202) 633-2201

Carol E. Dinkins, Ass't Attorney General; Edward J. Shawaker, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701