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A Warrant For Wetlands

July 16, 2013 | Land Trust Alliance | Washington, D.C.

A forcible warrantless entry onto residential property by the New Jersey Department of Environmental Protection (DEP) violated the Fourth Amendment, according to the New Jersey Supreme Court. A DEP agent entered private property without the landowner consent to monitor wetlands protected by the New Jersey Freshwater Wetlands Protection Act and a state conservation easement. (In this context “forcible entry” means without the landowner consent.)

In New Jersey Department of Wetlands v. Huber, the court ruled on enforcing the permit by administrative inspection but declined to address whether DEP had the right to forcibly enter the property as a result of the conservation easement - both because the easement was not deeded to DEP and because the DEP inspector had no knowledge of and thus was not relying on the easement at the time he entered the property. Nor did the opinion discuss the rights of private conservation organizations to enter on private property without the owner’s consent.  The opinion only discussed the defense against warrantless forcible entry offered by the Fourth Amendment, which applies only to actions conducted by government officials.

The subject of the case was a residential lot with a single family dwelling. The lot has a conservation easement preventing any future use of the wetlands area of the property. The developer of the lot filed for a wetlands permit to build on the property and, as part of the permitting process, subsequently granted the easement. Clinton Township is the easement holder but, by statute, the New Jersey Department of Environmental Protection has the right to inspect the protected wetlands.

A neighbor called the DEP with concerns that the owners were filling in the wetlands and mowing down vegetation. A DEP inspector visited and spoke with the owners. When inspecting the wetlands, he found that the owners had filled, mowed or otherwise disturbed over 30,000 feet of the preserved property. After a lengthy administrative process, the state fined the owners and ordered them to restore the conserved areas.

After exhausting administrative appeals, the landowners contested the decision in appellate court arguing, among other issues, that the DEP’s inspection of their property violated the Fourth Amendment of the US Constitution. Because a state agency inspected the property without their consent and without a warrant, they argued that the inspection was invalid and the inspector’s testimony should therefore be thrown out and the decision reversed for lack of evidence. They argued that Camara v. Municipal Court of San Francisco applied (holding that a warrantless inspection of a private dwelling by a municipal administrator without owner consent is generally unreasonable absent limited circumstances).

The New Jersey Supreme Court found that the law granting the DEP the right to inspect was constitutional on its face, but not as applied. The court found that the inspector had statutory authority to enter the property but should have secured the owner’s consent or should have resorted to an administrative process spelled out in the law’s regulations for obtaining an order from the DEP Commissioner to enter the property.  Furthermore, upon the landowner’s failure to comply with the Commissioner’s order, the DEP could bring a civil action and secure injunctive relief.

Key to the court’s decision was the principle that residential areas enjoy special protection under the Fourth Amendment. Precedent for warrantless searches of commercial properties does not apply to residential property - even the backyard or curtilage of the property that is closely regulated by a permit. Instead, the court held that the DEP official had the power to treat refusal as an offense and charge the landowner with a violation, but not to immediately proceed with entry.

Despite finding that the DEP had to follow procedure when conducting inspections and could not conduct inspections without the owners’ consent or administrative or judicial process, the court still found the owners to be in violation of the wetlands permit. Even if the court disallowed the testimony of the inspector, there was enough evidence from testimony of the landowners and neighbors to prove that the landowners were in violation. The landowners still had to pay fines and restore the wetlands.

Land trusts that are concerned about access for monitoring conservation easements can avoid difficulties with carefully drafted easements.  Because an easement is a legal instrument in which the owner voluntarily grants rights to the land trust which are private entities, it will not be subject to the Fourth Amendment prohibition of unreasonable searches by the government. This case applies to government agencies conducting administrative searches and not to land trusts conducting annual monitoring visits pursuant to a perpetual agreement granting the right of entry.

In a non-governmental context, unauthorized entry onto another’s property generally falls under the tort of trespass. Thus, this case indirectly raises the interesting question of what a land trust volunteer or employee should do if a conservation easement landowner denies her entry onto the protected property for monitoring or inspection purposes:  Proceed with the inspection over the objection of the landowner? Or walk away and have the land trust initiate legal proceedings to secure its right of entry? For an example of a land trust that chose the latter option, and was ultimately successful, see Nature Conservancy v. Sims. For an example of where an easement landowner unsuccessfully brought claims of trespass and assault against a land trust volunteer, see Freeport Conservation Trust v. Dunfey. For land trust personnel, this is an issue to be determined with the land trust attorney, senior leadership and the board in setting stewardship policy.

Generally in most states, self-help (e.g., entry despite the landowner refusal to permit entry such as blocking the driveway to deny access or writing that the land trust is not allowed on the property) is subject to limitations and liabilities. The limitations vary widely from state to state, so obtain legal counsel to determine the laws in your state. The legal system places varying degrees of limitation on self-help; sometimes the state will allow self-help as long as no law is broken, and no breach of the peace occurs (or is likely to occur). The latter is where problems usually arise and what makes self-help on entry onto property of others in the face of an explicit refusal of access so problematic. Also, the usual limit on liability for actions of an agent may not apply; if a land trust uses an independent contractor to perform the self-help it could still be held strictly liable if anything goes wrong. Courts will often place stricter limits on self-help in the context of property and resort to self-help in such situations is prone to tort liability, and in some jurisdictions, to criminal liability.

As a practical matter, escalating the dispute with a physical confrontation is not likely to be productive. Generally, a better policy is for the land trust Executive Director, attorney or Board chair follow up with the landowner to explain and again insist verbally and calmly on access.  If the landowner again refuses access then the land trust can avail itself of a court order to gain access. Please note: explicit refusal or denial of access is different than silence or absence of consent. If a conservation easement is properly drafted with an absolute right to inspect then mere lack of confirmation by the landowner regarding the planned visit is usually not considered a refusal and usually should not be an obstacle to annual monitoring. Land trust senior leadership should decide about these matters after consultation with the land trust’s outside counsel regarding applicable state laws.

For more information on monitoring provisions that you or your attorney should include in easements, please see the Land Trust Alliance’s Standards and Practices curriculum, Practice 09E, available on The Learning Center.

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