Takings and the Federal Endangered Species Act
Back in September, the House of Representatives undermined both the Endangered Species Act and fundamental principles of takings law in a single bill, the Threatened and Endangered Species Recovery Act of 2005 (TESRA).
TESRA was introduced by California Rep. Richard Pombo, an ardent property rights advocate. The bill contains a new and extreme version of so-called “regulatory takings” provisions that would pay citizens for simply complying with federal law. The bill would require taxpayers to pay financial “aid” to landowners who forgo a proposed use of the land that would harm threatened or endangered species. The amount of the “aid” would be fair market value of the forgone use of the affected portion of the land, including business losses. The bill would compel windfall compensation to landowners who had no reasonable expectation of using the land in a manner that would harm species, including those who bought the land with full knowledge of the presence of protected species.
The Senate might produce a more moderate bill. Sen. Mike Crapo of Idaho introduced the Collaboration for the Recovery of Endangered Species Act in December. Crapo’s bill proposes a plan of conservation banking and tax credits for species conservation measures. It’s likely that an Endangered Species Act revision will include some form of financial incentives for landowners to do the right, law-abiding thing.
While we appreciate the challenges that landowners face when it comes to species protection, we hope that Congress does not start paying people to adhere to the law.
The Washington Farm Bureau vs. the Farmers?
On November 15, the Associated Press reported that the Washington Farm Bureau announced a campaign for a property-rights initiative similar to Oregon’s infamous Measure 37, which was recently struck down by an Oregon Circuit Court. Measure 37 required state and local officials either to waive certain land use controls or pay landowners when those regulations reduced the value of their property by any amount.
This “any-value-loss” trigger for taxpayer-subsidized compensation is as extreme as it gets in the takings debate. It threatened not only to gut Oregon’s acclaimed urban growth boundaries and other planning measures, but also to establish a gargantuan corporate welfare system for developers, timber companies, and others who seek to exploit every square inch of their property without regard to the harm suffered by the surrounding community. And it is based on a radical notion of takings that has been emphatically rejected by the Supreme Court.
What makes the Washington Farm Bureau campaign especially outrageous is that the key plaintiffs in the Oregon suit to invalidate Measure 37 are themselves farm bureaus, farmers, and ranchers. These landowners argue that their businesses and property would be severely harmed if local officials waived agricultural zoning laws and other longstanding land use controls, thereby destroying watersheds and other vital natural resources. Measure 37 also would result in subdivisions immediately adjacent to their farms and ranches, bringing homeowners who might well file nuisance suits to curtail inconveniences caused by nearby farm and ranch operations.
Before the Washington Farm Bureau goes much further with its campaign, it might want to consult with the Oregon farm bureaus and farmers who actually lived under Measure 37, unless, of course, it is more interested in advancing an ideology than the interests of its members.
Hyping Cert. Petitions
On August 31, the Wall Street Journal published an op-ed by former Attorney General Edwin Meese urging the U.S. Supreme Court to grant certiorari in The Stearns Company v. United States, a case in which the Federal Circuit rejected a regulatory takings challenge to federal regulations on mining in our national forests. In 1937, Stearns had sold the surface estate of its property to the federal government for use as part of the Daniel Boone National Forest, but retained its mineral interest. In the 1970s, Congress banned mining in national forests except when the owner has a “valid existing right” (which Sterns does not have) or when the government issues a “compatibility determination” that the mining is consistent with environmental, economic, and other public interests. Stearns challenged this requirement to seek federal permission to mine as a regulatory taking.
General Meese evidently agrees. His op-ed declared that “mineral rights command a market value, because of the unqualified right to access them freely, without the consent of the surface owner.” Without this unfettered right of access, he wrote, “the mineral rights are worthless, and, as the law has long recognized, being able to petition a government agency for permission to access them is all but worthless.” Hailing the case as “potentially as momentous” as Kelo, General Meese stressed that in rejecting the claim, the appeals court had “overturned centuries of precedent.” If the ruling were allowed to stand, General Meese insisted, “for the first time in American history the courts will have created a giant detour around th[e] core constitutional requirement” to pay just compensation for a taking of property.
The op-ed is problematic on several levels, but two aspects are particularly striking. First, in United States v. Riverside Bayview Homes (1985), the Supreme Court squarely held that the assertion of regulatory jurisdiction does not constitute a taking: “A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself ‘take’ the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired.”
Second, the requisite compatibility determination is essentially “a rubber stamp” because the federal government has granted an unbroken string of 18 straight compatibility requests within the Daniel Boone National Forest since 1982. It is silly to argue that requiring Stearns to seek a similar approval rendered his mineral interest valueless, or constitutes a taking of its property. Indeed, CRC began its Federal Circuit amicus brief in Stearns by stating: “Takings law can give rise to difficult cases, but this is not one of them.”
On October 3, the Supreme Court denied cert. Perhaps General Meese should be more discriminating when making recommendations to the highest court in the land.
Local Officials as “Grassroots Tyrants”
The libertarian Institute for Justice (IJ), a prominent player in the so-called property rights movement and counsel for the Kelo landowners, recently referred to Community Rights Counsel as “probably the most pro-government public interest organization in the country.”
Although the context makes clear IJ intended the remark as a slur, we wear it as a badge of honor. We take great pride in the work we do to defend state and local officials and the laws they enact to improve the quality of life in our communities. While we have a healthy respect for the potential for abuse that comes with any government power, we don’t view local officials as the enemy, but as our neighbors, friends, and fellow citizens.
Not so with IJ. In fact, IJ invented a completely new term to describe local government: “Grassroots tyranny.” The phrase refers to what IJ calls the “ever-expanding beast” of local government, which in IJ’s world is populated by local officials with a “propensity” (not just an occasional lapse, mind you, but a propensity) to violate constitutional liberties. These “nameless, faceless bureaucrats” are plagued by “widespread corruption,” and we (normal people) are “at their mercy”.
Nonsense. By and large, local officials are the leading lights of our communities, and the municipal attorneys who represent them are the best the legal profession has to offer. Referring to them as “enemies” or “tyrants” is an outrage beyond comprehension, and yet IJ and like-minded outfits use this scandalous, attack-dog rhetoric as part of their everyday propaganda.
When you use the same phrase to describe both Osama Bin Laden and your local leaders, maybe it’s time to expand your vocabulary, or to visit your town hall to get to know your elected officials.
There is no Outrage of the Month for August 2005.
Down By the Old Mainstream: The Bernstein Imbroglio
Several weeks ago, George Mason University law professor
David Bernstein falsely accused CRC and Earthjustice of
fabricating quotations, and then recklessly claimed that
a nationally renowned legal journalist, Stuart Taylor, mindlessly
plagiarized the allegedly fabricated quotes. The charges
concerned a CRC-Earthjustice report on Janice Rogers Brown,
who serves on the D.C. Circuit and is often mentioned as
a future nominee to the U.S. Supreme Court. Our report criticized
Judge Brown's expansive view of regulatory takings law and
her support for the widely criticized Lochner ruling.
Bernstein leveled his false allegations on a popular legal
blog called The Volokh Conspiracy.
When Bernstein realized he had committed what he now calls
a "blatant error of fact," he immediately apologized
to Mr. Taylor, and after a comical, day-long series of revisions,
he finally coughed up an apology to CRC and Earthjustice,
attributing the false accusations to jet lag and the early
hour of his posting. He notably failed, however, to explain
why he would make such reckless allegations at 3 a.m. But
even after he apologized for maligning CRC, he continued
to malign us, characterizing our report as "deceptive"
and insisting that Judge Brown's positions on Lochner
and other matters are not disqualifying.
Bernstein evidently has had a change of heart. He recently
told the National Journal that Judge Brown "has certainly
expressed more sympathy for Lochner than is currently respectable
in mainstream legal circles." Welcome aboard, Dave.
We couldn't have said it better ourselves.
There is no Outrage of the Month for June 2005.
NAHB Outdoes Itself
While CRC is absolutely delighted with the outcome in Lingle
(see Feature Case),
we were surprised to learn that the National Association
of Home Builders (NAHB) also cheered the result. Maybe the
NAHB should read the opinion, and its own amicus brief,
a little more closely.
Shortly after the court handed down Lingle, the
NAHB issued a press release calling the case "a victory
for property rights." But its amicus brief called the
preservation of the "substantially advance" test,
which was thoroughly repudiated by a unanimous court, the
key to protecting property rights: "If the first prong
of Agins is eliminated, the rights protected by the
Takings Clause will become poor relations, indeed."
The NAHB press release also asserts that Lingle's
"preservation of the essential-nexus and rough-proportionality
tests  is important to the home builders." But the
idea that the "preservation" of the Nollan and
Dolan tests constitutes a win for the NAHB is laughable,
since Nollan and Dolan weren't challenged
by anyone in Lingle. NAHB further suggests that Lingle calls
for the application of Nollan and Dolan to
impact fees, but just the opposite is true, as explained
in our Feature Case column.
During the oral argument in Lingle, Justice Scalia
said of the Agins test, "we have to eat crow
no matter what we do, right?", meaning it was clear
at that point that the Agins test was simply unworkable
in the takings context. The court owned up to its error,
calling the Agins language "regrettably imprecise"
and announcing: "Today we correct course."
We don't want to sound like sore winners here, but it's
really time for the NAHB to taste its own helping of crow.
California Coastal Commission Fights for its Life
The California Coastal Commission, which is in the business
of defending the state's 1,100 miles of coastline from environmental
threats, had to defend itself from a legal threat
in the California Supreme Court earlier this month. Happily
for the environment, lovers of California beaches, and the
agency, the court gave the Commission's challengers a chilly
The case started in 1999 when the misleadingly-named Marine
Forests Society sued the Commission for its refusal to grant
a permit to allow the Society to dump garbage-old tires,
plastic jugs, PVC pipe-on ropes off the California coast
in hopes of creating an artificial reef that would soon
teem with marine life. The Commission was skeptical of the
Society's claims, saying science didn't support the belief
that plants and fish would make the proposed junk heap home.
The Society then sued the Commission, saying its structure
violated the separation of powers, because the state legislature
appointed eight members of the 12-member executive agency.
Tellingly, the Society's legal counsel is the Pacific Legal
Foundation, which has long complained that the Commission
blocks the unfettered exercise of private property rights.
Richard Zumbrun, a PLF co-founder, told a local newspaper
that his real complaint with the Commission are rules that
give the public access to the state's beaches.
The California Supreme Court seemed unmoved by Zumbrun's
arguments about alleged separation of powers violations.
Chief Justice Ronald George reminded Zumbrun that the California
and U.S. Constitutions have different notions of executive
power, calling it "a mistake
to try to import
principles of federal jurisprudence that are not applicable
to the states." Another justice noted that for over
a century, the court had consistently upheld the validity
of the state legislature's appointment power.
The Court must rule in the case by the beginning of July.
Let's hope that California's highest court recognizes that
the Marine Forest Society's legal arguments aren't any better
than the scientific basis for its schemes.
Billion-dollar Takings Claim Threatens Pacific Fishing
All too often, regulatory takings cases are characterized
as pitting environmental values against economic interests.
Lost in this false dichotomy is the fundamental but overlooked
truth that environmental protection itself is vital to a
Nowhere is this more evident than in the billion-dollar
takings lawsuit filed by Klamath Basin irrigators against
the federal government in the U.S. Court of Federal Claims.
The suit challenges the federal Bureau of Reclamation's
decision, during a severe 2001 drought, to reduce water
allocations to farmers from the Klamath River to protect
threatened coho salmon downstream. The farmers contend that
the reductions caused economic harm.
Commercial fishermen moved to intervene in the case. The
Court permitted the fishers to join the action, the first
time it has allowed a group to intervene to vindicate economic
interests based on wildlife protection. Their presence in
the case will assist in understanding that in protecting
the environment, the government often acts as a referee
among competing economic interests.
The case is one of several lawsuits that follow a recent
$16.7 million takings award arising out of water diversions
in the Tulare Lake water district. Arguments in Klamath
were held on March 30. The court should give careful consideration
to the economic interests of the fishers in evaluating the
viability of the farmers' claim.
Last year, extreme views of property rights and fierce
antipathy to environmental protection kept grazing lobbyist
and former Interior Solicitor William Myers from taking
a lifetime seat on the Ninth Circuit court of appeals. Or
did they? Like a bad movie villain who keeps popping up
to fight another day, Myers was renominated to the Ninth
Circuit this month.
Despite his radical view that property rights have the
same Constitutional status as freedom of speech, remarks
comparing federal land management to the tyrannical rule
of King George over the American colonies, and accusations
that environmentalists are "bent on stopping human
activity wherever it might promote health, safety and welfare,"
Myers has been deemed the best of the bad bunch of Bush's
second-term judicial nominees. New Senate Judiciary Committee
Chairman Arlen Specter has scheduled his hearing for March
1st-the very first hearing for any of Bush's second-term
Yet Myers' record, which was troubling the first time around,
is even more disturbing today. He "specifically authorized"
a deputy to enter into a disastrous settlement with Frank
Robbins, a rancher who repeatedly violated federal grazing
laws. Recently, more has come to light about the Robbins
settlement, and the new information raises troubling questions
about the fact that Myers did not ensure that his deputy
followed federal law and department procedures in negotiating
Myers also committed the Department of the Interior to
supporting a giveaway of valuable federal lands, after lamenting
that Interior couldn't hand over the land on its own. The
land contains rock and salt that the Bureau of Land Management
says could be worth hundreds of millions of dollars for
construction projects. On the basis of Myers' recommendation,
two California Congressmen introduced legislation that would
have given the land to a private company. BLM employers
were highly critical of this decision, with one telling
a reporter, "There is 1.3 million tons of rock and
200,000 tons of sand [on the land in question] * * * Why
in the world would we give it up? I'm not here to give away
public resources." The Department of the Interior reversed
Myers' position and withdrew its support for the giveaway
after the facts came to light.
Myers seems unable to put aside his own agenda when it
conflicts with the law. The country does not need judges
who will ask "What's good for the grazing and mining
industries?" but rather who ask "What do the law
and the Constitution require?"
The Institute for Justice, counsel for the landowners in
Kelo v. City of New London, has waged an extensive
public relations campaign to push its position that the
Constitution prohibits community officials from using eminent
domain to acquire land needed for economic redevelopment.
This media blitz is filled with myths and distortions too
numerous to list, but among the most pernicious falsehoods
is IJ's suggestion that local officials who back economic
development projects do so as a sop to politically connected
private developers. IJ and its supporting amici portray
these community leaders as having a ravenous appetite for
increased tax revenues so they can secure reelection by
creating more government programs for political allies.
In its amicus brief in support of New London, Community
Rights Counsel took dead aim at this nonsense. We explained
that local governments do not exist to enrich a select few,
but to solve problems and provide services that all citizens
need and demand. And we stressed that the millions of dollars
provided by economic development projects mean more money
for vital government services across the board, including
more police officers and firefighters, increased support
for senior citizens, better pre-natal care, adolescent pregnancy
prevention, more teachers and better-equipped schools, more
effective child-abuse prevention, and so on.
IJ's media campaign also ignores the tremendous job benefits
that come from redevelopment projects. In Kelo, after
decades of economic decline, New London suffered another
serious blow in 1996 when the Navy closed a large defense
facility, throwing 1,500 more people out of work. Through
the Fort Trumbull redevelopment project, this city of 25,000
residents hopes to create up to 2,500 new jobs. Without
the use of eminent domain, a small handful of holdouts will
doom the project, condemning the community to the hopelessness
of unemployment and the social ills that come with it, including
spousal abuse, poverty, crime, alcoholism, and suicide.
The holdouts in Kelo and other eminent domain cases
sometimes have sympathetic stories to tell, and the burdens
imposed by eminent domain should not be ignored. In some
situations, reasonable people can disagree about how best
to balance the equities. But if we're going to debate these
choices, let's have an honest public debate that openly
acknowledges the human misery that will result if job creation
and economic development are no longer deemed to be a "public
use" under the Constitution. The caricature of New
London officials as revenue grabbers disserves the discussion.