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Takings Watch Newletter -
2001 Eye on Washington Archive


DECEMBER 2001

House Subcommittee Scrutinizes "Judicial Junkets"

On November 29, the House Judiciary Committee held a hearing on "judicial junkets" and other judicial ethics issues. The hearing builds on a July 2000 report by CRC entitled Nothing for Free: How Private Judicial Seminars are Undermining Environmental Protections and Breaking the Public's Trust (available at www.tripsforjudges.org). Between 1992 and 1998, more than a quarter of the federal judiciary traveled to resorts at the expense of private interests with a stake in federal litigation. Many of these privately funded seminars are designed to advance a specific anti-regulatory legal agenda. In the words of one seminar sponsor: "[We are] out to influence minds. . . . If court cases are changed, then that is something we are proud of as well."

Federal employees in the Executive branch are prohibited from attending such seminars or accepting other items of value offered to them because of their official position. It remains a mystery why this simple idea has not made its way into the code of conduct for federal judges.

CRC Executive Director Doug Kendall testified at the hearing that judicial junkets should be banned, more effective penalties should be imposed to enforce judges' disclosure obligations, and public access to financial disclosure forms should be increased. CRC's testimony was well received on both sides of the aisle, with Chairman Howard Coble (R-NC) emphasizing: "I would classify [CRC] as a watchdog and that is a compliment. I never believed that the Federal Judiciary ought to be fed with a preferential spoon…"

Legislation has been introduced by Senators Kerry and Feingold that would move things in the right direction. We'll keep you posted on future developments.


NOVEMBER 2001

Are Conservatives Finally Starting to Listen?

Many conservatives are faced with a striking dilemma in the takings debate. They push for an aggressive application of the Takings Clause, but at the same time they denounce judicial activism and insist that the proper role of judges is to interpret the law, not make it up as they go along.

CRC and others long have argued that the so-called property rights movement is advocating blatant, improper judicial activism that contravenes the original understanding of the Fifth Amendment, as well as principles of federalism and separation of powers. In a 1998 report called "The Takings Project" (http://www.communityrights.org/takproj.html), CRC chronicled how Professor Richard Epstein and other conservative legal theorists have been using the courts to advance an activist reading of the Takings Clause, which, in Professor Epstein's words, renders "constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers' compensation laws, transfer payments [and] progressive taxation." More recently, in a 2001 report called "Hostile Environment"(http://www.communityrights.org/reportmain.html), CRC described how activist judges are misusing the Takings Clause and other constitutional provisions to undermine our nation's basic environmental protections.

It appears as though some conservatives are finally starting to listen, and even welcome debate on this issue. The Federalist Society, an influential group of conservative and libertarian legal scholars and practitioners, held a panel discussion on this very question at its November 17 National Lawyers Convention. The panel, which included CRC's Executive Director Doug Kendall, addressed the topic: "Property Rights Protection: Judicial Activism or a Return to First Principles?" (visit www.communityrights.org to read Doug's remarks). It is unlikely that any of the attendees experienced a Damascus-road conversion, but discussion of the issue provides hope that at least some of these conservative lawyers will see the hypocrisy behind their simultaneous call for judicial restraint and Takings Clause activism.


OCTOBER 2001

D.C. Firm Brings $1 Billion Takings Suit Against Feds

In our August issue of Takings Watch, we reported on the deeply disturbing nomination to the Court of Federal Claims (CFC) of Larry Block, a Senate staffer who has been a driving force behind radical takings bills for many years. Anyone who doubts the importance of the CFC should think again. Drawing comfort from the awful decision of the CFC in Tulare Lake v. U.S. (See May Takings Watch), the Washington, D.C. "property-rights" law firm of Marzulla & Marzulla recently filed a one billion dollar regulatory takings lawsuit against the United States in the CFC, challenging restrictions on irrigation water from Klamath Lake in Oregon needed to protect coho salmon and other endangered fish. The suit should fail, both because the water rights are different than those at issue in Tulare Lake and because Tulare Lake should be reversed on appeal, but the $1 billion price tag certainly illustrates the stakes at issue in the takings debate. Nancie Marzulla is the President of Defenders of Property Rights, and her husband, Roger, is the former head of the Justice Department's Environment and Natural Resources Division, which will now defend against the suit. The water withdrawal at issue marks the first time since the Klamath Project irrigation system opened in 1907 that the U.S. has acted in the interest of commercial fishers and Indian Tribes, who have suffered for years due to declining salmon runs.


SEPTEMBER 2001

September 11th

Our hearts go out to the families of the victims of the terrible tragedy visited upon Washington, New York, and Pennsylvania on September 11, 2001.

Words cannot express our gratitude to the firefighters, police officers, and other local officials who have proven once again that they are our society's true heroes.

Unfortunately, some have sought to use the attack to push their own special interests. Just days later, Pacific Legal Foundation ran an opinion piece under the blaring headline -- "IT'S A DANGEROUS WORLD. DRILL FOR OIL" -- demanding that the Arctic National Wildlife Refuge and other environmentally sensitive areas be opened for drilling. Grist Magazine reports that "Rep. Don Young (R-Alaska) flew right over the cuckoo's nest and straight into nutville" by suggesting that eco-terrorists participated in the attacks. The Rev. Jerry Falwell pointed the finger at the American Civil Liberties Union and People for the American Way.

It is grossly inappropriate for anyone to exploit this tragedy or blame other Americans in order to advance a policy agenda. For now, our response to the attack should reflect our unity as Americans. In future months, there will be time enough to return to public policy debates with civility and decorum.



AUGUST 2001

On August 2, President Bush nominated Lawrence J. Block to be a judge on the U.S. Court of Federal Claims (CFC) for a term of 15 years. The CFC is critical for takings litigators because it has exclusive jurisdiction over all monetary claims against the United States for more than $10,000. It has produced some of the most troubling rulings in takings jurisprudence, including Florida Rock, Inc. v. United States, 45 Fed. Cl. 21 (1999). Mr. Block's nomination is deeply disturbing. Since 1994, he has worked on the Senate Judiciary Committee to promote extreme federal takings legislation, including the radical Contract-with-America compensation bills that effectively would have gutted vital protections. It is hard to imagine a nominee more likely to become an anti-environmental judicial activist. There's no word yet on when the Judiciary Committee will hold hearings on the nomination.


JULY 2001

CRC and Others Urge Senators to Scrutinize Judicial Nominees on Takings and Other Activist Doctrines

On July 18, 2001, Community Rights Counsel and others released a report entitled "Hostile Environment: How Activist Federal Judges Threaten Our Air, Water, and Land." The report documents how a group of ideological judges are threatening core environmental protections through activist rulings.

These judges have used aggressive readings of the Takings Clause and other discredited legal theories to strike down a wide range of environmental protections. One judge effectively found a "constitutional right" under the Takings Clause to use motorboats in a wilderness area. Another blocked efforts to clean up toxic waste contamination because it concluded that the Superfund site was a local real estate matter not subject to federal control. A federal appeals court dusted off the "non-delegation" doctrine to strike down air pollution health standards designed to prevent 15,000 premature deaths annually.

On the day the "Hostile Environment" report was released, CRC and a dozen other groups sent letters to every U.S. Senator asking for close scrutiny of judicial nominees to ensure that they will properly respect the policy choices made by our elected representatives to protect the environment.

The report is available at www.communityrights.org, and hard copies are available by e-mailing leah@communityrights.org.


JUNE 2001

One of the hottest topics in our nation's capital is judicial selection. The Senate Judiciary Committee recently held hearings to explore the role of ideology in the Senate's consideration of judicial nominees. Senator Charles Schumer argued for Senate opposition to any nominee whose views fall outside the mainstream, but others expressed concern about new ideological litmus tests. Those of us interested in the takings issue should keep an eye on this debate. Community Rights Counsel and others soon will issue a report that documents how improper judicial activism under the Takings Clause and other constitutional provisions threatens environmental safeguards and other community protections. The report urges President Bush to remain true to his pledge to appoint judges who will interpret the law, not make it up as they go along according to their own policy preferences. That way, we stand a better chance that future judges will apply the narrow text of the Takings Clause in a way that allows for appropriate community protections.


MAY 2001

Senate Shift Is Death Knell for Takings Legislation

Local control over land-use law should not be a partisan issue. The reality, however, is that Republicans such as Orrin Hatch (R-UT) have been the lead backers of legislation drafted by the National Association of Home Builders that would make it far easier for developers and others to sue municipalities in federal court. For that reason, James M. Jeffords's (R-VT) departure from the Republican Party, and the shift in control of the U.S. Senate to the Democrats, virtually kills any chance of passage of the NAHB takings bill. The bill, passed by the House but killed in the Senate in each of the last two Congresses, was described by the NAHB as a "hammer to the head" of local officials. Virtually every national group that represents cities and counties opposes the bill. "This shift in control should be the death knell for the NAHB takings bill, at least for the time being," said Tim Dowling, CRC's Chief Counsel.


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