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Community Rights Report Newsletter - Outrage of the Month

(Past Outrage of the Month Archives: 2001, 2002, 2003, and 2004.)


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.

JULY 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.

JUNE 2005

There is no Outrage of the Month for June 2005.

MAY 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.

APRIL 2005

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 reception.

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.

MARCH 2005

Billion-dollar Takings Claim Threatens Pacific Fishing Industry

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 sound economy.

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.


He's Back!

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 nominees.

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 this settlement.

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?"


Kelo Myths

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.




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