Hold Your Nose Around These Takings Claims
It's bad enough when mining companies, developers, and other
landowners abuse the Takings Clause for financial gain. But
it is both short-sighted and hypocritical when municipalities
and other public agencies do the same.
Officials in Kings County, California, advise that takings
challenges are being brought against county protections prohibiting
the use of certain kinds of sewage sludge as fertilizer on
farms. Although the county still allows the application of
"Exceptional Quality" sludge (an oxymoron if there
ever was one), sludge that contains excessive pathogens and
other contaminants that threaten public health are banned,
subject to appropriate amortization periods. One might expect
aggressive applicators to sue, and they have. But a large
sanitation district also has sued the county under the Takings
Clause. And the real parties in interest behind the applicators'
lawsuits are large urban municipalities that want cheap disposal
of their sewage sludge.
We hope that the public agencies pushing these suits come
to their senses before they establish takings precedent that
will come back to haunt them in the future.
The Devious Dog in the Manger
As noted in last month's Takings Watch, the claimants
in the IOLTA takings case pending before the Supreme Court
suffer no economic harm from IOLTA and thus have nothing to
gain economically from their campaign against the program.
This circumstance prompted one judge to compare the claimants
to the dog in Aesop's fable who refused to let the cow into
the manger to eat hay, even though the hay was no use to the
In recent months, Washington Legal Foundation's barking has
become even more mean-spirited. In a September 2002 fundraising
letter, WLF tells potential donors that IOLTA supports "radical
legal groups all across the country" and suggests that
IOLTA funding goes to left-leaning political groups. The truth
is that IOLTA funding goes to groups that provide legal services
to the impoverished. In other words, WLF is misleading its
supporters about the nature of IOLTA-funded legal services
in order to raise money to support its anti-IOLTA crusade.
An amicus brief filed by AARP and others accurately describes
WLF's fundraising letter as a "gross mischaracterization"
of IOLTA and provides many real-world examples of how IOLTA
has helped poor people fight unjustified evictions from their
homes, protected the elderly from fraud, assisted the indigent
in coping with medical crises, and addressed myriad other
legal issues faced by those who otherwise could not afford
Hats off to AARP and its fellow amici for setting the record
straight. And shame on WLF for distorting the truth for the
sake of a buck.
An Argument for the Birds
At CRC, we are all for military readiness, and we believe
that land use and environmental laws should be flexible enough
to ensure a strong national defense. That said, in Center
for Biological Diversity v. Pirie, 191 F.Supp.2d 161 (D.D.C.
2002), the Bush Administration went off the deep end in seeking
to exempt certain Department of Defense activities from federal
At issue was the venerable Migratory Bird Act of 1918, one
of the oldest and least controversial environmental statutes
on the books. As Rep. Dingell has observed, "We have
fought two World Wars, the Korean War, Vietnam and the Persian
Gulf War with this law in place, and there is no demonstrated
need to exempt the Department of Defense now."
When environmental groups and bird-watchers filed a lawsuit
under the Act claiming that Navy bombing exercises in the
Pacific were killing native bird populations, the U.S. Department
of Justice responded by adopting some jaw-dropping arguments
advanced in an amicus brief whose filing was rejected by the
court. DOJ maintained that live-fire exercises protect wildlife
by keeping people off the island. DOJ also contended that
bird-watchers would actually benefit from decimated bird populations,
asserting: "In some respects, bird-watchers get more
enjoyment spotting a rare bird than they do spotting a common
Federal District Court Judge Emmet Sullivan pointedly instructed
DOJ lawyers to "refrain from making or adopting such
frivolous arguments in the future." We hope they get
Company's SLAM Suit Threat Riles Texas Community
The aluminum manufacturing giant Alcoa reportedly has turned
to threats to coerce local officials in Bastrop County, Texas
to approve its mining plan, and local citizens and officials
are feeling the heat.
Alcoa wants to mine lignite in an area transversed by county
roads and two state highways. Alcoa wants the roads moved.
It is willing to pay relocation costs, but that is not the
point.Local officials want to go slow, if at all, because
the proposed mine would dramatically impair 16,000 acres in
Bastrop and adjacent counties, and could seriously impact
groundwater in the region. Alcoa's aluminum smelting plant
in Rockdale, Texas is the largest in the country and is thought
to emit more air pollution than any other industrial facility
in the state.
Alcoa wants a deal right away, and they're playing hardball
to get one. Alcoa's lawyers are saying Bastrop County could
be liable for up to $120 million in takings compensation if
the company is not allowed to mine lignite under the county's
roads. The threat of such a huge judgment has county officials
nervous since their total annual budget is roughly $10 million.
This imbalance is nothing new for local governments. Most
small cities and towns in America are like Bastrop County,
generating less than $10 million in annual revenue. Indeed,
90 percent of these communities maintain populations of less
than 10,000 people and cannot afford even one full-time municipal
lawyer to defend against the well-financed litigation efforts
of the development industry and the so-called property rights
movement. We call these frivolous legal actions SLAM (Strategic
Litigation Against Municipalities) suits, and we are seeing
more and more SLAM suits every day.
County officials are reportedly seeking the advice of outside
counsel to help them assess Alcoa's takings threat. Let's
hope they get some good advice. And shame on Alcoa for turning
to threats and bluster to intimidate local officials seeking
to protect the public interest.
An Advocate's Spin on Tahoe-Sierra
Counsel of record for the claimants in Tahoe-Sierra
recently gave new meaning to the term "zealous advocacy."
Offered space for his views in the June 2002 issue of the
American Planning Association's "Land Use Law and Zoning
Digest," Michael Berger used the opportunity to blast
the APA for filing an amicus brief in support of the Tahoe
Regional Planning Agency in Tahoe-Sierra, accusing
the APA of "moral nonsense," suggesting that it
is "a hired gun for local government," and exhorting
it "to grow up." Mr. Berger ends his rant by comparing
professional planners to Senator Joseph McCarthy (!?!), asking
the APA: "Have you no shame?"
It's Mr. Berger who appears to have some growing up to do.
Mr. Berger should at least acknowledge that his theory of
the case - that any temporary ban on all use, no matter how
reasonable, is a taking - was an extreme one. Mr. Berger argued
that a ten-minute denial of all use is a taking, a theory
so radical that even the dissent refused to embrace it. Plainly
the APA, concerned with the efficacy of land-use moratoria,
a commonplace and important planning tool, had reason to oppose
this argument and side with TRPA.
Mr. Berger also needs to check his facts more carefully.
His excoriation of the APA is strewn with the same misstatements
that characterized his briefs. He asserts, for example, that
TRPA permanently prohibited any use of "virtually all"
of the lots at issue. Yet, as noted at oral argument, a pretrial
order shows that many of the claimants may build under the
1987 Regional Plan now in effect. And at trial, an expert
appraiser testified that even during the moratorium, restricted
lots retained reasonable economic value on the open market.
To these errors, Mr. Berger adds a remarkable new misstatement,
asserting that landowners subject to the moratorium were "randomly
selected individuals." Every parcel of land at issue
in the case was included in the moratorium based on extensive
scientific evidence showing that uncontrolled development
of the lot would contribute to the continued destruction of
Lake Tahoe. The claimants never seriously questioned the science
that supports the selection of their lots for land-use controls.
Indeed, the trial court found "that further development
on high hazard lands such as the plaintiffs' would lead to
significant additional damage to the lake. * * * There is
a direct connection between the potential development of plaintiffs'
lands and the harm the lake would suffer as a result thereof.
* * * Although unwilling to stipulate to the fact that TRPA's
actions substantially advanced a legitimate state interest,
the plaintiffs did not seriously contest the matter at trial."
In the face of this finding, uncontested on appeal, Mr. Berger
now asserts that TRPA selected the restricted lots at random.
We trust that planners and others who read the APA "Land
Use Law Digest" will be able to discern the difference
between truth and spin.
For several months, the American Bar Association's Committee
on Ethics and Professional Responsibility has been considering
whether to issue new ethical guidance for judges regarding
the dubious practice of accepting free seminars at resort
locations funded by corporate litigants or ideological philanthropists,
seminars that frequently present a slanted view of the issues.
Although CRC has been at the forefront of investigating and
criticizing this practice, we have played no role in the ABA's
So we were more than a little surprised to learn that Leonidas
Ralph Mecham, Executive Director of the Administrative Office
of the U.S. Courts, recently sent a memo to the Chief Justice
of the United States and members of the Judicial Conference
accusing the ABA of "relying almost entirely" on
CRC in formulating its ethics opinion and accusing CRC of
opposing judicial junkets to "advance the interests of
its financial contributors."
We're flattered that Mr. Mecham would think that the 400,000-member
ABA needs to rely "almost entirely" on our five-person
shop. But his memos to the Chief Justice need some rudimentary
factchecking. In follow-up correspondence, the ABA forcefully
refuted the notion that CRC or any other organization has
played a role in the formulation of the ethics opinion. Indeed,
the ABA does not discuss such deliberations with any outside
group except for the judges that serve on the Ethics Committee's
judicial advisory board.
Moreover, Mr. Mecham's assertion that CRC's judicial watchdog
activities seek to advance the interests of its financial
contributors is, simply put, Orwellian. We have exposed these
trips because they advance the interests of those who fund
them at the expense of the appearance of impartiality. CRC's
funding comes entirely from independent foundations that care
about environmental protection, land use policy, and judicial
independence. And our clients include groups like the American
Planning Association and the National Governors Association,
not organizations typically viewed as having a particularly
nefarious philosophical and economic agenda. Our goal is to
promote a judiciary that is independent, impartial, and above
Mr. Mecham seems bent on opposing any additional ethical
restrictions on judicial junkets, an opposition so vehement
that he shoots first and asks questions later. We won't hold
our breath waiting for an apology.
California Takings Initiative Qualifies for Ballot
Smart growth advocates in California's pristine Nevada County
face an ominous challenge in November. The Nevada County Elections
Office announced May 24 that the "Property Owner Claims
Reimbursement Process Initiative" had qualified for the
ballot in this year's election. The initiative, promoted by
the California Association of Business, Property and Resource
Owners, would require the county to pay property owners for
land-use regulation that diminishes the value of their property
(subject to a narrow nuisance exception). The initiative would
also allow property owners to present such "takings"
claims directly to the Superior Court, without first seeking
lower court review.
Such a "one-size-fits-all compensation mandate"
would seriously increase the cost of community protections,
hindering the county's ability to manage its growth and react
to changing conditions. Moreover, by bypassing normal procedural
and legal requirements for establishing a takings claim in
the courts, the proposed initiative threatens to displace
200 years of takings jurisprudence. All of this has the American
Planning Association "watching in horror" and the
Pacific Legal Foundation, which helped with early drafts of
the proposal, predictably cheering.
If passed, the initiative would serve as a dangerous precedent
for municipalities throughout the region. Nevada County voters
will decide the fate of this referendum - and the county's
community planning efforts - in November.
"Takings Retreat Report" Rears Its Ugly Head
Readers may recall that a few years ago, the International
Municipal Lawyers Association, the U.S. Department of Justice,
and many others persuaded the ABA Section of State and Local
Government Law not to ratify something called the "Takings
Retreat Report." The report proposed changes to takings
law that would have greatly benefited claimants at the expense
of state and local governments. Of particular concern were
recommendations that tracked arguments made by the National
Association of Home Builders in support of NAHB's federal
takings bill, which purported to rewrite the ripeness requirements
articulated in Williamson County Reg'l Planning Comm'n v.
Hamilton Bank (U.S. 1985).
The report's bias was no surprise given the developer lobby's
disproportionate influence at the retreat. Due to the robust
opposition to the retreat report voiced by IMLA and others,
the ABA Section declined to approve it. Some might have concluded
that we could move on to other things.
Not so fast. Like the hockey-masked killer Jason in the "Friday
the 13th" movie series, the retreat report has returned
from the dead. In a brief recently filed with the U.S. Court
Appeals for the Eighth Circuit, Michael Berger, Gideon Kanner,
and NAHB cite the retreat report in an effort to get the Court
to ignore Williamson County's clear mandate that takings claims
against state and local governments be filed in state court.
Because Berger and Kanner were part of the retreat organizing
committee, surely they know that the report states that "the
Retreat did not advocate change in the essentials of the Williamson
County ripeness requirements [because] there was no consensus
on such changes." They also must know that when the ABA
recently published the report (along with IMLA's comprehensive
opposition) as part of a larger collection of essays on takings,
the ABA included a disclaimer that "the retreat report
should not be cited as reflecting the position of the ABA
or the ABA Section of State and Local Government."
CRC plans to file an amicus brief to apprise the Eighth Circuit
of these details. If readers encounter citations to the retreat
report in other contexts, CRC asks that you let us know immediately
so that we may make an appropriate response. Together, hopefully
we can usher Jason to his final resting place.
Is Private Property "Extinct" in California?
Pop quiz! Who recently wrote the following? "Private
property, already an endangered species in California, is
now entirely extinct in San Francisco. * * * [T]he property
right is now -- in California, at least -- a hollow one."
Given the over-the-top tone, one might guess that the author
was Gideon Kanner, one of the shrillest pro-developer voices
in the takings debate, or perhaps Richard Epstein, who candidly
acknowledges that his vision of the Takings Clause casts into
doubt the constitutionality of zoning, progressive taxation,
and many other reforms of the 20th Century.
But this jarring pronouncement comes not from an overcharged
advocate or detached academic, but from a jurist, Justice
Janice Brown of the California Supreme Court, who is reputed
to be on the short list of potential nominees to the U.S.
Supreme Court. Justice Brown reached this startling conclusion
in her lone dissent in San Remo v. San Francisco (2002), a
case in which the Court upheld San Francisco's efforts to
address its affordable housing crisis by limiting the ability
of residential hotels to convert to tourist use (see Feature
Case in the March 2002 Takings Watch).
This result was too much for Justice Brown, who seems prepared
to deem many community protections to be takings. After accusing
San Francisco of being a "kleptocracy," she stressed
that in her view the "[r]estriction of any one of the
several rights that constitute private property in effect
takes that property." This radical view of takings would
call into question myriad land use controls. The San Remo
majority flatly rebuffed Justice Brown's activism: "However
strongly and sincerely the dissenting justice may believe
that government should regulate property only through rules
that the affected owners would agree indirectly enhance the
value of their properties, nothing in the law of takings would
justify an appointed judiciary in imposing that, or any other,
personal theory of political economy on the people of a democratic
One hopes that the President will think hard about her radical
views on property - and the turmoil that her nomination would
cause - before nominating her to the highest court in the
According to the Newark, NJ Star-Ledger, James Burling of
the Pacific Legal Foundation believes that in the wake of
Palazzolo v. Rhode Island (U.S. 2001), smart growth
is now "doomed." Burling also is quoted as saying
that "the best characterization of smart growth is that
smart growth is dumb takings" and that smart growth is
"ultimately incompatible with the protection of property
This hyperbolic assessment of the impact of Palazzolo
is remarkable because Burling and PLF have yet even to
win a victory for Mr. Palazzolo. The Supreme Court's remand
of the case is yet another limited ruling from which both
sides of the debate may draw support.
Far from being incompatible with property rights, smart growth
enhances the property rights and property values of most Americans
by making our communities better places to live. Smart growth
will easily survive Palazzolo and the overheated exaggerations
of developers' lawyers.
A Takings Claim for the Birds
The so-called property rights movement
is famous for using the proverbial “widow in a wheelchair” to put a
sympathetic face on their efforts to roll back health, safety, and
environmental protections. Well, it may be that the community rights side
has found a poster child of its own: his name is Tony Silva. Mr. Silva is
a convicted criminal seeking compensation under the Takings Clause for the
value of his ill-gotten booty in Silva v. United States, 2002 WL
62982 (Fed. Cl. Jan. 11, 2002).
Tony Silva's brazenness was
extraordinary even before he filed his takings claim. According to the
U.S. Department of Justice, Silva is one of the world's most ruthless
wildlife smugglers, conspiring with his mother and others to run a
nine-year, multimillion-dollar ring in which rare hyacinth macaws and
other exotic birds were captured from the Brazilian rainforest and sold in
the U.S. for as much as $10,000 apiece. The birds were transported in the
false bottoms of suitcases and in other inhumane ways. All the while,
Silva established himself as an internationally renowned author and
advisor to bird owners, regularly denouncing wildlife smuggling in his
Illegal wildlife trade like Silva's is a
$5-billion-a-year business, the second most profitable black market in the
world (behind drugs and ahead of arms smuggling). In 1996, Silva pleaded
guilty to conspiracy and tax evasion. The trial court sentenced him to 82
months in prison.
During its investigation, the United
States executed a search warrant and collected 103 of Silva's parrots.
According to the trial court, Silva then abandoned the birds, and they
were distributed to various persons and institutions for research. Silva
filed a habeas corpus petition requesting return of the parrots, but the
trial court denied relief.
Silva then filed a takings claim seeking
compensation for the value of the 103 parrots and their potential progeny.
On Jan. 11, 2002, the U.S. Court of Federal Claims ruled that it did not
have jurisdiction under the Tucker Act to hear the claim because it was,
in essence, a request that the court "intervene in the district
court's enforcement of the criminal law in the guise of a takings
claim." The court concluded that "it is unreasonable to hold
that, in enacting the Tucker Act, the Congress intended [the Court of
Federal Claims] to intervene in the conduct of criminal trials * *
If accepted, Silva's radical takings theory could
generate claims by drug dealers, arms smugglers, and others who regularly
deal in contraband. Because Silva is representing himself pro se, it would
not be surprising to see an appeal before this claim finally flies away.
PERC vs. Osama bin Laden?
In our September 2001 newsletter, we
lamented that certain politicians and special interest groups were
exploiting the tragic events of September 11th to promote their policy
agendas. As galling as those early exploiters were, they were pikers when
compared to PERC, the Political Economy Research Center in Bozeman,
Montana, which bills itself as the "Center for Free Market
PERC's radical brand of free market
environmentalism goes far beyond emissions trading and other market-based
proposals that merit thoughtful attention. For example, PERC supports
passage of a federal takings bill that would gut federal environmental
protections, and it advocates auctioning off much of the nation's public
land to the highest bidder.
So, what does selling the Grand Canyon
to Disney have to do with Osama bin Laden? We're given the answer in a
November 29, 2001 fundraising letter by PERC Chairman John Tomlin, who has
the temerity to make an explicit appeal for donations to PERC based on the
September 11th attacks. Mr. Tomlin begins the letter by observing:
"At PERC, we have asked ourselves what is the role of free market
environmentalism in a world rocked by terrorism and a sense of
insecurity." As one wag put it, you might as well ask: “What is the
role of broccoli in an MRI exam?” None, as far as we can see.
Undeterred, Mr. Tomlin continues:
"When we thought about what is under attack, we realized that the
terrorists are threatened by those core principles on which PERC was
founded." Huh? The terrorists have proffered a number of bogus
excuses to justify their evil actions, but so far free market
environmentalism has not made the list.
Then comes the monetary appeal: "As
we stand strong against this menace * * * we need your continued support,
now more than ever.” We hope that any recipient of the PERC fundraising
letter will instead direct a donation to one of the charitable groups
providing assistance to the September 11th victims and their families.
Our thanks goes to Dick Schneider,
professor at Wake Forest Law School, for bringing PERC’s letter to our
To read Outrage of the Month from our 2001 issues, click