In the above video Professor Neil Hamilton walks us through the establishment of a legal duty of stewardship for Iowa’s landowners.
Legal Responsibilities and Sustainable Agricultural Land Tenure
Professor Hamilton’s article, Feeding Our Green Future: Legal Responsibilities and Sustainable Agricultural Land Tenure, further discusses the legal duty of stewardship in Iowa and the advent, or lack thereof, of a land ethic, as described by Aldo Leopold more than six decades ago. Following a brief introduction, sections from this article are used to explain the legal duty of stewardship in Iowa and provide insight into the adequacy of today’s land ethic.
Is there a duty of stewardship for landowners? From a legal perspective this question is fairly easily answered. Yes, as discussed in the first section of Professor Hamilton’s article, there are laws in place that mandate a certain level of stewardship. This is certainly an important subject for landowners as violating legal duties can have serious consequences. It is in the interest of landowners that lease their property to know the legal obligations that come with land ownership in order to both ensure farm practices do not violate these obligations and to provide protections from liability where a violation does occur. However, it is also important to look beyond compliance with legal obligations and to determine how to ensure the innate duty that arises from landownership is fulfilled.
The Duty of Stewardship on Leased Farmland
Before proceeding to the article, it is important to answer another question that arises in the context of a farm lease arrangement. Who is responsible for the land’s stewardship? Many tenants believe responsibility for long-term stewardship lies with the landowner, who, after all, will retain ownership after the expiration of the lease period. Many landowners, however, rely on their tenants who are in legal possession of the land and work the land on a regular basis to provide for its stewardship.
It is critical for landowners to understand they not only have the greatest interest in the stewardship of the land, but also the greatest ability to effect that stewardship, and, therefore, are the ultimate stewards of the land. This means that landowners are responsible for the stewardship of their land, but it is important to not only recognize this in terms of liability and to not merely draft farm lease contracts that pass off that responsibility, but also to ensure a level of stewardship that sustains the land, the farm operation, and the community.
VIII. History of Iowa Law Relating to Soil Stewardship
A study of land tenure in Iowa rests in part on the tradition of how Iowa’s courts and lawmakers have addressed issues of land stewardship over the centuries. Iowa law on land tenure and soil stewardship rests on three legal pillars. First is the 1943 ruling in Benschoter v. Hakes, where the Iowa Supreme Court upheld the state’s authority to regulate farm tenancies by requiring advanced notice of termination, even when leases establish a fixed end date.[FN20] The Court’s analysis is premised on the importance of soil to the state and the relation between short-term farm tenancies and soil exploitation. The court noted in the following passage how the relation between private landowners and the public had changed in recent years with landowners bearing significant responsibilities to protect public resources like soil.
“It is quite apparent that during recent years the old concept of duties and responsibilities has undergone a change. Such persons, by controlling the food source of the nation, bear a certain responsibility to the general public. They possess a vital part of the national wealth, and legislation designed to stop waste and exploitation in the interest of the general public is within the sphere of the state’s police power. Whether this legislation has, or will in the future, accomplish the desired result is not for this court to determine. The legislature evidently felt that unstable tenure lead (sic) to soil exploitation and waste. The amendment aims at security of tenure and it is therefore within the police power of the state.”[FN21]
The second pillar is the soil and water conservation district law, establishing the network of locally elected commissions designed in part to administer the federal and state programs for soil conservation and erosion control. The law requires each district to establish enforceable soil loss limits and sets out a procedure for enforcement. Iowa Code section 161A.43 makes it the duty of each landowner to comply with these limits or face regulatory action by the district. [FN22] Actions to investigate possible violations of the standards can be initiated by neighbors who are damaged by the erosion or by the district commissioners who believe violations are occurring. [FN23] The soil loss limits in all Iowa districts are set at 5 tons of soil loss per year or T (T being a measure of the soil loss believed to be replaced by natural soil formation). [FN24] Iowa Code §161A.43 establishing the landowner’s duty of soil stewardship, provides:
“To conserve the fertility, general usefulness, and value of the soil and soil resources of this state, and to prevent the injurious effects of soil erosion, it is hereby made the duty of the owners of real property in this state to establish and maintain soil and water conservation practices or erosion control practices, as required by the regulations of the commissioners of the respective soil conservation districts.” [FN25]
The third pillar of Iowa soil stewardship law was written in 1979 when the Iowa Supreme Court upheld enforcement of a mandatory soil loss limit against a claim it was an unconstitutional taking to require private landowners to expend money to implement suggested soil conservation practices or take land out of production to stop erosion from damaging a neighbor. In Woodbury County Soil Conservation District v. Ortner, the Court upheld the requirement as being within the state’s police power given the public interest in soil and productive farmland. [FN26] The court ruled:
“It should take no extended discussion to demonstrate that agriculture is important to the welfare and prosperity of this state. It has been judicially recognized as our leading industry. The state has a vital interest in protecting its soil as the greatest of its natural resources, and it has the right to do so. This is the purpose of ch.467A [now Chapter 161A] as is apparent from this declaration of purposes contained in §467A.2 [now §161A.2]: It is hereby declared to be the policy of the legislature to provide for the restoration and conservation of the soil and soil resources of this state and for the control and prevention of soil erosion and for the prevention of erosion, floodwater, and sediment damages, and thereby to preserve natural resources, control floods, prevent impairment of dams and reservoirs, assist and maintain the navigability of rivers and harbors, preserve wild life, protect the tax base, protect public lands and promote the health, safety and public welfare of the people of this state.” [FN27] (citations omitted)
The Court reviewed the owner’s taking claim and reversed the district court, concluding the landowner failed to establish the law is unconstitutional, finding “its provisions are reasonably related to carrying out the announced legislative purpose of soil control, admittedly a proper exercise of the police power.” [FN28] The Court said, “[w]hile this imposes an extra financial burden on defendants, it is one the state has a right to exact.” [FN29] The Court observed, “Defendants still have the use and enjoyment of their property, limited only by the necessity to prevent soil erosion beyond allowable standards.” [FN30]
This seminal ruling established the constitutionality of Iowa’s soil conservation law. Together the three precedents leave little doubt Iowa law makes it the duty of all landowners – regardless of income, education, or attitude – to embrace soil stewardship. In many ways the precedents give meaning to Secretary Wallace’s quote at the beginning of this essay. However his concern that we have been slow to recognize the duty we owe to the soil still rings true. In the thirty years since the ruling in Woodbury County, progress has been slow in helping Iowa landowners embrace their duty to the land. Actions by county soil conservation districts to enforce the soil loss limits are almost non-existent, even though average soil losses in the state still exceed the limits in most areas. The willingness of the USDA Natural Resource Conservation Service to enforce the conservation cross compliance provisions of federal farm programs is no more ambitious. The lack of willingness by the public officials given responsibility to protect the land to confront the evidence of soil and land abuse raises its own set of issues to examine.
The Land Ethic
A mentioned previously, it is important for landowners to look beyond legal obligations. While many reading this probably already recognize the value of stewardship, it is still important to consider the notion that an innate duty arises from the essential relationship between landowner and land that extends beyond the realm of law and regulation. In a society heavily reliant on the law to approbate acceptable actions, or inaction, and powered by monetary gain it is too easy to limit certain ethical decisions to the base law. This is particularly true where the government and the law are reflections of a society that places a high value on individual liberty and economic returns and fears government involvement.
However, this is not to say there is not a higher duty to look beyond our individual fencerows to the greater community and to plan not only for the next season but for generations beyond. But, where is the motivation to adhere to such a duty if not from enforcement by government agencies or even local conservation boards? While certainly addressing the role of government, Aldo Leopold, more than sixty years ago, wrote of a need for a land ethic beyond government mandate.
IX. History of Concern for Land Tenure and Stewardship — What has Changed?
The contrast between the heightened concern over land tenure issues that existed seventy years ago as reflected in the 1937 President’s Committee on Farm Tenancy and what exists today is stark. The concern and attention for soil conservation and stewardship articulated by Aldo Leopold in The Land Ethic and embodied by the soil and water conservation district movement of the 1940s stand in sharp contrast to attitudes common in agriculture today.[FN31] The 1930s era concern for soil conservation and land tenure was, in essence, among the first expressions of public concern for man’s impact on the environment (along with deforestation and wildlife issues). In many ways, soil conservation was the original environmental movement. Today the modern environmental movement has emerged but ironically our historic commitment to soil conservation and stewardship and concern for land tenure and agricultural structure have waned (or even disappeared). Perhaps even worse than the waning is the apparent shift of alignment in how agriculture is positioned on environmental issues. Today farmers and agriculture are not seen as the frontline of the stewardship movement but instead as the rear guard traditionalists opposed to most environmental concerns and resistant to any expansion of a public role in protecting land.
These factors pose a question: what changes explain the shift in attitude and approaches – especially the legal and regulatory dimensions? Here are some possible explanations:
1. Is it because the job is done? Have our soil conservation laws worked, and soil stewardship is secure? The evidence on the ground and in our streams do not support this. The rush to remove land from the CRP to plant more corn is exhibit one in this reality.
2. Is it because bad practices have been “regulated” out of use? Does the evidence support the idea soil loss limits and the conservation compliance rules have addressed our concerns? Again the facts do not appear to support this conclusion – at least if the levels of enforcement or willingness to use these tools are any measure. The reality may be we translated a once extant personal conservation ethic into public regulations, but ones we are unwilling to enforce or that do not satisfy our needed standard of resource protection.
3. Is it because “property rights” dogma has caused a reevaluation of the public’s right to require individual landowners to care for their land? One outgrowth – if not goal – of recent public debates over “property rights” (driven in part by agricultural interests) has been to question the public’s ability to establish and impose standards as to how land is used. In legal terms the issue is to question what is an appropriate exercise of the police power, for example, does it include protecting wetlands or meeting soil conservation standards? The tragedy is this political controversy has moved the nation and society backwards by necessitating a reappraisal of legal issues settled long ago. Sixty-five years ago the Iowa Supreme Court affirmed the legitimacy of state law to prevent the exploitation and waste of soil and farmland. Rather than build on this history and tradition public officials today ask tentatively whether it is appropriate or legal to expect landowners to conserve and steward the land.
4. Is it because we are not aware of the problems or are not paying attention? Could part of the apparent lack of concern for soil stewardship be due to a lack of awareness or attention? With an array of other public issues and environmental concerns claiming our attention it might be convenient or comforting to consider soil conservation as something already in check. Certainly few in farm country are interested in bringing attention to the issue if doing so could bring into question farmers’ oft heard claim of “being the original environmentalists” or lead to more public action. The drumbeat of concern over water quality in Iowa has a direct relation to farming practices and if we address that first it is difficult to divorce it from attention to the latter. [FN32]
5. Is it because we have given up on farm structure and the family farm due to the continuing – perhaps almost complete – industrialization of agriculture? The structure of Iowa agriculture in scale and the economic resources involved has changed greatly in the last fifty years, even the last ten. Even assuming we have given up on the ideal of protecting the “family farm” however we might describe it, does this resignation mean our concern for the land on which farming occurs must also vanish? If anything the increase in absentee ownership associated with changes in Iowa’s farming structure should make our concerns about soil conservation and stewardship even more pressing. Similarly the increased economic value of farmland and its enhanced political role as an energy source should mean its protection is an even greater public goal.
6. Is it because our legal tools do not work or are not used? Perhaps the laws we have relating to soil conservation and land stewardship are inadequate or ineffective. It is not that we don’t have laws addressing soil conservation and land tenure. As we have seen, Iowa Code §161A.43 requires every landowner to comply with soil loss limits established by the local soil and water conservation district and Iowa Code §562.6 provides farm tenants with notice before leases can be terminated or altered. [FN33] But you can count on one hand the soil and water conservation districts willing to enforce Iowa’s soil loss limits and the protection for tenants have little value in competitive rental markets where tenants face complying with rent increases whenever made or risk not farming the land in future years.
X. Thoughts about Aldo Leopold and The Land Ethic
Aldo Leopold’s Sand County Almanac published in 1949 is considered one of our most important writings about ecology and man’s relation to the environment. [FN34] From a legal perspective the final essay The Land Ethic is a cogent and eloquent discussion of our duty to the land. In framing the discussion as based on ethics Leopold said:
“An ethic, ecologically, is a limitation on freedom of action in the struggle for existence. An ethic, philosophically, is a differentiation of social from anti-social conduct. These are two definitions of one thing. The thing has its origin in the tendency of interdependent individuals or groups to evolve modes of co-operation. The ecologist calls these symbioses. Politics and economics are advanced symbioses in which the original free-for-all competition has been replaced in part, by co-operative mechanisms with an ethical content.” [FN35]
Any lawyer will recognize this as a function the law provides for society. Leopold defined his land ethic this way:
“A land ethic, then, reflects the existence of an ecological conscience, and this in turn reflects a conviction of individual responsibility for the health of the land. Health is the capacity of the land for self-renewal. Conservation is our effort to understand and preserve this capacity.” [FN36]
One value of framing the issue of land stewardship in terms of ethics is how it broadens the mechanisms society has for enforcement, including social disapproval for wrong behavior. Leopold said, “The mechanism of operation is the same for any ethic: social approbation for right actions: social disapproval for wrong actions.” [FN37]
Leopold reserved some of his sharpest criticism for government efforts to promote soil conservation, efforts he felt were long on talk and devoid of content or obligation. His concern was we ask farmers to do only what is convenient to protect the land and expect little more, leaving the largest role in conservation to government, noting “there is a clear tendency in American conservation to relegate to government all necessary jobs that private landowners fail to perform.” [FN38] Leopold recognized the fundamental challenge in our relation to land is the dominant role we give economics. He noted:
“It of course goes without saying that economic feasibility limits the tether of what can or cannot be done for land. It always has and it always will. The fallacy the economic determinists have tied around our collective neck, and which we now need to cast off, is the belief that economics determines all land-use. This is simply not true. An innumerable host of actions and attitudes, comprising perhaps the bulk of land relations, is determined by the land-users’ tastes and predilections, rather than by his purse. The bulk of all land relations hinges on investments of time, forethought skill, and faith rather than on investments in cash. As a land-user thinketh, so is he.” [FN39]
Leopold was not a lawyer and he questioned the wisdom of relying on government regulations yet he appears to acknowledge a role for law in a land ethic. After speaking about the economic limitations on government conservation, he notes:
“What is the ultimate magnitude of the enterprise? Will the tax base carry its eventual ramifications? At what point will governmental conservation, like the mastodon, become handicapped by its own dimensions? The answer, if there is any, seems to be in a land ethic, or some other force which assigns more obligation to the private landowner.” [FN40](emphasis added)
There has been much focus on the “land ethic” but less commentary about the “some other force” portion of this. One illustration of the potential of “some other force” can be seen by the Iowa courts’ rulings on soil and land stewardship.
One value of Leopold’s writing is his ability to put into historic and biblical context issues still resonating today. Consider this quote about Abraham knowing why the land exists – “to drip milk and honey into Abraham’s mouth [a]t the present moment, the assurance with which we regard this assumption is inverse to the degree of our education.” [FN41] Does our current rush to corn-based ethanol and visions of a new golden period of agriculture seem reminiscent of Abraham’s view the role of land is to drip milk and honey into our collective mouths? It is here that Leopold’s analogy of agriculture being the pump used to tap the land’s well rings prophetic:
“The ecological fundamentals of agriculture are just as poorly known to the public as in other fields of land-use. For example, few educated people realize that the marvelous advances in technique made during recent decades are improvements in the pump, rather than the well. Acre for acre, they have barely sufficed to offset the sinking level of fertility.” [FN42]
Concerns about land tenure and sustainable agriculture are in essence concerns about caring for the well, not just the pump.
XI. What is Iowa’s Land Ethic?
Reading a new biography on Leopold and rereading The Land Ethic raise many questions about how his writings can help shape our thinking about land tenure. [FN43] Applying Leopold’s idea to land relations in Iowa is an interesting but in some ways disheartening exercise. It is clear many farmland owners recognize little semblance of an ethical duty to the land – at least not in a Leopoldian sense. To a cynic it might appear our land ethic – if ethic can be used so casually – is all about economics – maximizing returns, increasing yields, and selling for the highest price. “Get the most you can out of your land now” could be our state motto. If this requires plowing under a hillside pasture or grasslands protected for fifteen years in the CRP to plant more corn, then so be it. If it means recreational fall tillage and leaving the soil bare to blow until spring or running the planter to the riverbank, then so be it. If it means letting cattle amble in the streambed or taking a bulldozer to the last trees in the fence row, then so be it. If it means platting the lots and staking the streets for the final harvest on a flat fertile forty, whose only crime was being in the way of suburban progress, then so be it. As owners we are legally entitled to do all this and more – and we dare anyone to say or even hint our doing so is somehow unethical or improper.
We ask little of the land, that is, other than to yield without resistance to our decisions and to return us the largest sum possible. In exchange we expect the land to ask nothing of us – perhaps other than to pay the taxes, record the deed and cash the checks. There is no expectation we will care for the land at least if caring means love, respect, attention, or foregoing a harmful action. What care we do provide is driven by a calculus it will pay off in the near term – or help us meet an oppressive government rule, one we obey grudgingly, if at all. The truth is we do not expect anyone to ask us to do anything for the land – certainly not the government, the neighbors or nosey environmentalists and do-gooder professors. “If they care so much for land – then they may buy some of their own!”
Yes Iowa has environmental laws but who is there to enforce them on the back forty? We are quick to sing paeans to our rich Iowa farmland and its bounty but good luck finding a community willing to stay its annexation plans to protect prime farmland. If you are feeling risky, try telling a dues paying member of a farm organization they cannot sell for housing lots. Iowa law may make it the duty of every landowner to protect the land from erosion but try finding a soil conservation district willing or wise enough to enforce the rules. The story is no better for the federal farm payments we hand out by the millions – with few questions asked. Part of the public’s bargain in exchange for taxpayer support is a commitment landowners will comply with soil conservation rules but drive down any country road – or check the USDA’s enforcement records – to see if the promise of conservation compliance is empty or real.
Yet even with these challenges there is good news for Iowa’s land. First, not all landowners see land only through the lens of money. Some owners are anxious to find ways to protect the land they care about so deeply. Organizations like the Women, Land and Legacy Project are empowering women landowners to care for their land. [FN44] Second, more Iowans are buying land with conservation goals and environmental protection in mind. Organizations like the Iowa Natural Heritage Foundation work with hundreds of landowners all across the state to protect the land. Third, public institutions like some of Iowa’s county conservation boards are taking more responsibility toward the land. We may never achieve Leopold’s vision of a land ethic but we can always strive to be better stewards and recognize fee simple legal title is only one measure of ownership.
[FN 20]. Benschoter v. Hakes, 8 N.W.2d 481 (Iowa 1943).
[FN 21]. Id at 487.
[FN 22]. IOWA CODE § 161A.43 (2005)
[FN 23]. IOWA CODE § 161A.61 (2005)
[FN 24]. See, e.g., MARION, IOWA, CODE § 176.35(16) (2005) (citing City of Marion Iowa’s 5 ton sediment loss maximum).
[FN 25]. IOWA CODE § 161A.43 (2005)
[FN 26]. Woodbury County Soil Conservation Dist. v. Ortner, 279 N.W.2d 276 (Iowa 1979)
[FN 27]. Id at 278.
[FN 28]. Id. at 279.
[FN 29]. Id.
[FN 30]. Id.
[FN 31] One example of the heightened role issues of and tenure and use played in society was the creation of new organization Friends of the Land billed as “a non-profit, non-partisan society, for the conservation of soil, rain and man” which published a quarterly journal The Land, 1 THE LAND (Winter) 1, 11 (1941).
[FN 32] See, e.g. Editorial, Embrace a new water ethic for Iowa, D.M. REG., June 22, 2008, at OP1.
[FN 33] IOWA CODE § 161A.43 (2005); IOWA CODE § 562.6 (2005);
[FN 34] ALDO LEOPOLD, A SAND COUNTY ALMANAC AND SKETCHES HERE AND THERE (Oxford University Press 1987) (1949). There are many editions of Leopold’s famous work. The citations are to a special commemorative edition published in 1987 on the 100th anniversary of his birth.
[FN 35] Id. at p. 202.
[FN 36] Id. at p. 221
[FN 37] Id. at p. 225
[FN 38] Id. at p. 213
[FN 39] Id. at p. 225
[FN 40] Id. at p. 213
[FN 41] Id. at p. 205
[FN 42] Id. at p. 223
[FN 43] See JULIANNE L. NEWTON, ALDO LEOPOLD’S ODYSSEY (2006).
[FN 44] Women, Land, and Legacy, Homepage, http:// www.womenlandandlegacy.com/womanvoice.htm (last visited Aug. 9, 2008).