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Chapter 4: The Takings Project
With supportive judges sitting in critical places in the
federal judiciary, a large and still-growing collection of
corporations, non-profit law firms and think tanks has assembled
to assist developers in bringing takings cases through the
court system and to these judges.
The Courthouse
Lawyers
At the center of the Takings Project is a nationwide network
of non-profit legal foundations that bring takings cases free-of-charge
to their clients. At least 12 active organizations —
the Pacific Legal Foundation, the Mountain States Legal Foundation,
the Institute for Justice, the New England Legal Foundation,
the Defenders of Property Rights, the Southeastern Legal Foundation,
The Northwestern Legal Foundation, the Oregonian’s in
Action Legal Center, the Texas Justice Foundation, the Stewards
of the Range, the Landmark Legal Foundation and the Washington
Legal Foundation — with a combined budget in excess of
$15 million, litigate takings cases on behalf of property
owners.1
These non-profits act as the highest profile courthouse lawyers
in the Takings Project. Dubbing property rights the "civil
rights issue of the 90’s,"2 they
have adopted what Charles Fried termed an "ACLU-type
constitutional litigation strategy" for turning Professor
Epstein’s flawed theory on takings law into the law of
the land.3
As one participant declared: "I look upon us as the bearers
of the torch of the civil rights movement. . . . I see us
as successors to Martin Luther King and Thurgood Marshall."4
This labeling is particularly ironic because many of the same
groups leading the Takings Project — most prominently
the Pacific Legal Foundation and the Institute for Justice
— are simultaneously fighting to limit or dismantle the
civil rights laws and Supreme Court opinions that represent
an important part of Marshall and King’s life work.5
The leading force in this litigation campaign is the Pacific
Legal Foundation (PLF). Formed in Sacramento in the early
1970’s by aides to Governor Ronald Reagan, PLF has spent,
in their words "a quarter of a century devoted to defending
property rights, the free enterprise system, and the concept
of limited government."6
PLF’s goal, like Epstein’s, is to use the Takings
Project as a way to "'get rid of the regulatory state
established under F.D.R.’s New Deal.'"7
Begun with a single office and a $100,000 budget, PLF has
grown with the Takings Project. It is now a national organization
with offices in 5 states, a budget of over $4 million and
a litigation docket consisting of 60 of the most important
takings cases from around the country.8 PLF
only represents a small number of plaintiffs in the time-consuming
and expensive early stages of litigation.9 Typically,
PLF will monitor cases from around the country, weigh in with
an amicus brief as a case reaches a federal appellate court
or a state supreme court, and then, if the case has a sympathetic
plaintiff and presents an important issue upon which PLF desires
Supreme Court review, PLF will assist the landowner in petitioning
the Supreme Court to review the case.10
The campaign has been a remarkable success for PLF. PLF has
either represented the plaintiff or assisted the plaintiff
in obtaining Supreme Court review in each of the last four
important regulatory takings cases heard by the Supreme Court,11 and
the property owner has prevailed in each of the cases. These
cases, in turn, have set the stage for even more dramatic
victories in the Federal Circuit and other federal courts.
As PLF Founder and past-President Ronald Zumbrun has boasted
"[w]e see the 90s as our decade. . . . We have the weapons
— court precedent, experienced personnel, and credibility."12
The Institute for Justice has also been playing an increasingly
large role in takings litigation. The Institute was founded
in early 1991 by William Mellor, a Reagan Administration official
and a former litigator for the Mountain States Legal Foundation,13 and
Clint Bolick, a veteran of the Meese Justice Department and
a former assistant to Supreme Court Justice Clarence Thomas
when Thomas chaired the EEOC. The Institute spends its more
than $2 million annual budget to convince conservatives that
"'conservative judicial activism' is neither an oxymoron
nor a bad idea."14
The Institute’s Center for Private Property Rights both
litigates cases on behalf of property owners and supports
property owners in cases brought by other groups.15
The Institute distinguishes itself from other legal foundations
by being able to claim that it is not just inspired by Professor
Epstein, Epstein is a regular contributor. In three recent
Supreme Court takings cases, Lucas, Dolan and Suitum,
Professor Epstein has co-authored an amicus brief on the Institute’s
behalf.16
A third organization, the Defenders of Property Rights (DOPR),
distinguishes itself as "[t]he nation’s only legal
defense foundation dedicated exclusively to the protection
of property rights."17 Founded
by the husband and wife team of Roger and Nancie Marzulla,
two veterans of both Mountain States Legal Foundation and
the Meese Justice Department,18 DOPR
boasts that it has won 13 of the 15 property rights cases
in which it has acted as lead counsel and has assisted property
owners in 61 other cases.19
The non-profit law firms that are working takings cases through
the courts coordinate with each other through regular meetings
in Washington DC hosted by the Heritage Foundation. Edwin
Meese, who started the Takings Project more than a decade
ago, continues to play an important role in overseeing its
progress. According to three published reports, Meese, now
a Ronald Reagan fellow at the Heritage Foundation, Co-Chair
of the Board of Trustees of the Federalist Society and a Board
Member of the Defenders of Property Rights, oversees regular
meetings at the Heritage Foundation that coordinate the participants
in the Takings Project.20
The legal foundations are assisted in litigating takings
cases by an army of pro bono lawyers from private law firms.
This pro bono network amplifies the forces marshaled by the
legal foundations.21 For
example, in 1993, Washington Legal Foundation reported that
forty-eight law firms, including top Washington DC law firms
such as Arnold & Porter and Covington & Burling, donated
pro bono services to WLF.22
The largest player in organizing this effort is the Federalist
Society. The Society has expanded its efforts to attract practicing
lawyers in recent years and now has a lawyers’ division
with 59 chapters and 18,000 members.23
A central focus of this expansion has been the establishment
of a pro bono resources network that links conservative lawyers
who wish to litigate on behalf of conservative and libertarian
causes with legal foundations such as PLF, which conduct such
litigation.24 The
Society reports that over 1,000 members have joined this network.25
The Institute for Justice runs a similar network dubbed the
Human Action Network or HAN. HAN is comprised of over 300
lawyers that have participated in the Institute’s lawyer
and law student training programs. HAN seeks to "broaden
our movement’s impact exponentially" by enlisting
lawyers and law students trained by the Institute to bring
cases that further the Institute’s ideological agenda.26
A final important player in guiding takings cases through
the courts are the associations representing developers. The
largest player in this industry-based effort is the National
Association of Home Builders (NAHB). With 190,000 members,
a $48 million budget,27 a staff
in excess of 350, and 850 affiliated state and local associations
nationwide,28
the NAHB is one of the nation’s best organized and most
powerful lobbying organizations. The NAHB has always filed
amicus briefs in support of property owners in important takings
cases and supported local associations in litigating cases.29
In several recent high-profile cases, however, the NAHB has
delved more directly into the fray by bringing a series of
cases as plaintiffs on behalf of its members.30
Training Lawyers
and Judges
The non-profit organizations leading the Takings Project
also devote considerable resources to training the pro bono
counsel, counsel for developers and private practitioners
that assist them in litigating takings cases, and to training
and rewarding the judges that provide them with critical victories
in takings cases.
Lawyer Training
The most important actor in the lawyer training effort is
again the Federalist Society. The Society’s Lawyer’s
Division operates a practice group on "Environmental
Law and Property Rights" to discuss topics such as "the
'takings' implications of zoning and major federal pollution
laws," and conducts workshops training lawyers on bringing
takings cases.31
The tenor of these workshops can be gleaned from the report
filed by the Chicago Daily Law Bulletin on a 1992 Federalist
Society conference entitled "Takings and the Environment:
The Constitutional Implications of Environmental Regulations."32
The Bulletin described the seminar as "a national revival
meeting for takings lawyers" and went on to report:
Environmental takings are hot and the specialty bar knows
it. They’ve tasted blood, and they want flesh. Throw
them a bone and they’ll bite off your arm. They’re
bigger now and, thanks to recent court rulings, they’ve
got teeth.33
The Bulletin explained this fervor as follows: "[i]t's
like they’ve been a suppressed religious cult for years
and suddenly gained legitimacy and mainstream currency."34
The PLF also conducts takings training seminars in venues
across the country discussing topics such as "Getting
Into State Court," "Trying a $200 Million Dollar
Regulatory Taking Case," and "Proving Denial of
All Economically Viable Use." While billed as non-partisan
events and often co-sponsored by prominent legal organizations
such as the American Law Institute and the American Bar Association,
these seminars have a decided ideological slant. Several participants
in an October 1996 PLF training seminar in Washington DC event
described the seminar as a "property rights rally"
where opposing views were repeatedly deemed "bullshit"
by the conference chair.35
Finally, the Institute for Justice plays an important supporting
role. The Institute hosts "Policy Activist Seminars"
each year for practicing lawyers intended to "develop
a whole new network of conservative legal crusaders across
the country."36 These
seminars seem to be having the intended impact: Edwin Meese,
a speaker at the Institute's 1995 seminar declared the seminar
to be "one of the more important events in the conservative
movement."37 A recent
attendee reported leaving the seminar "considerably energized
and looking eagerly for someone to sue."38
Training Judges
Conservative and libertarian non-profits are also devoting
significant resources to keeping conservative activist judges
in the fold. A number of non-profit organizations, including
the Manhattan Institute’s Center for Judicial Studies,
the Liberty Fund and George Mason University’s Law and
Economics Center, host all-expense paid judicial seminars
that discuss libertarian views on topics including property
rights.39
The most significant judicial training program, both in its
popularity among judges and in its focus on property rights,
are the programs for federal judges run by the Foundation
for Research on Economics and the Environment (FREE).40 FREE
is a Montana-based non-profit that promotes "free market
environmentalism," a doctrine that relies on free market
and private property rights as the best protectors of the
environment. Perhaps the leading legal academic proponent
of free market environmentalism is FREE trustee James Huffman.
Huffman, in turn, is Professor Epstein’s most consistent
proponent and one of the few academics to vocally promote
judicial activism on behalf of property owners.41
Since 1992, FREE has offered summer seminars for federal
judges. The seminars provide judges with free travel and accommodations
at a ranch resort near Bozeman, Montana to obtain their presence
at lectures that, in their words, "emphasiz[e] property
rights, market processes and responsible liberty."42 As FREE
explains:
Our seminars in environmental economics and policy provide
federal judges economic, scientific and ethical insights
when they hear environmental cases. We explain how secure
property rights, entrepreneurial innovations and the market
process can improve environmental policy.43
The seminars also provide time for "cycling, fishing,
golfing, hiking and horseback riding."44
FREE boasts that nearly one-third of the federal judiciary
has either attended or asked to enroll in a future FREE seminar
and that, in 1996, nearly 150 federal judges applied for 54
seminar openings. FREE’s seminars have been particularly
popular with the judges appointed to the bench by Presidents
Reagan and Bush. Seventy-eight of the 109 federal judges (72%)
attending FREE’s seminars, and 27 of 36 appellate court
judges (75%) were appointed by Presidents Reagan and Bush
(see graph, page 36).
The seminars have also been very popular with the judges
on the Federal Circuit and the Court of Federal Claims that
are revolutionizing federal takings law. Judges Michel, Mayer,
Newman, Rader and Plager of the Federal Circuit, and Chief
Judge Smith, and Judges Futey, Robinson, Turner, and Yock
from the Court of Federal Claims have all attended FREE Seminars;
Judges Plager and Michel have each attended two FREE seminars
since 1992.45
FREE’s judicial seminars are funded by the same foundations
— the Olin Foundation, the Carthage Foundation, the Sarah
Scaife Foundation and the M.J. Murdoch Foundation — that
are funding groups such as the Pacific Legal Foundation, the
Defenders of Property Rights and the New England Legal Foundation
to litigate takings cases in courts such as the Federal Circuit.
So, for example, the Olin Foundation simultaneously funded
the New England Legal Foundation to litigate on behalf of
the property owners in the landmark Federal Circuit case,
Preseault v. United States,46 and
FREE to provide judicial seminars for several of the Federal
Circuit judges that decided to hear the Preseault case
"en banc" and ruled in favor of the NELF.47
Similarly, the M.J. Murdoch Foundation has been both a large
contributor to FREE 48 and
the Pacific Legal Foundation,49
which has appeared before the Federal Circuit as an amici
in the seminal Florida Rock and Loveladies Harbor
cases.50
Finally, through the Carthage Foundation, Richard Mellon Scaife
is the largest single contributor to FREE 51 and
PLF,52 and
one of the largest supporters of the Defenders of Property
Rights, "[t]he nation’s only legal defense foundation
dedicated exclusively to the protection of property rights."53
Through the other foundation Scaife heads, the Sarah Scaife
Foundation, Scaife is also one of the largest contributors
to NELF.54
Procedural
Reform Legislation
This term in Congress, proponents of the Takings Project,
most notably the National Association of Homebuilders, have
turned to the Project’s congressional supporters for
legislation designed to grease the wheels of the Takings Project.55 In particular,
the NAHB drafted 56 and
turned the full force of its lobbying capability behind the
Private Property Implementation Act of 1997 (H.R. 1534).57
H.R. 1534 (and its Senate companion bill, S. 1204) would expand
the jurisdiction of the federal courts over takings claims,
eliminate procedural requirements that encourage judicial
restraint (such as the requirement that potential litigants
"exhaust" non-judicial relief before bringing suit),
and require the government to pay the legal fees of developers
who win in court. Despite the strong opposition of the Judicial
Conference of the United States, 37 state Attorneys General,
the American Planning Association, the National Governors
Association, the National Conference of State Legislatures,
the National League of Cities and the U.S. Conference of Mayors,
H.R. 1534 passed the House of Representatives on October 22nd
by a 248 to 178 vote. The Senate equivalent, S. 1204, has
now garnered 31 co-sponsors.
Equally notable simply for its audacity is Sen. Orrin Hatch’s
(R-Utah) Citizens Access to Justice Act of 1997 (S. 1256)
and its companion bill in the House, H.R. 992. Hatch’s
takings bill would add to S. 1204 provisions that would significantly
expand the jurisdiction of the Court of Federal Claims and
other federal district courts to hear takings cases against
the federal government, giving takings plaintiffs the opportunity
to forum shop between their local federal district court and
the Court of Federal Claims.58 Moreover,
to "assure uniformity in property rights law," Hatch’s
bill would vest in the Federal Circuit exclusive appellate
jurisdiction to hear takings cases against the federal government
from every district court in the nation. While declaring,
in other words, that "a judicial activist on the left
or the right, is not, in my view, qualified to sit on the
federal bench,"59 Hatch’s
legislation would reward the nation’s most activist court
on property rights with significant new powers to shape the
direction of takings law in this country. (As this Report
was going to print, the Senate Judiciary Committee voted Senator
Hatch’s proposed takings legislation out of committee
on a 10-8 party line vote and the House of Representatives
passed H.R. 992.)
Bankrolling the
Takings Project: The Funding Vision of William Simon and
Richard Mellon Scaife
Finally, a word about the sponsors. While the Takings Project
has received funding from every major conservative foundation
and a wide variety of corporations, developers and individuals,
the campaign is, to a remarkable extent, the funding vision
of two prominent conservatives philanthropists: William Simon,
now president of the Olin Foundation, and Richard Mellon Scaife,
chair of the board of both the Carthage and the Sarah Scaife
Foundations. These two funders have helped start or maintain
virtually every non-profit organization playing an important
role in the Takings Project. In many, if not most cases, these
foundations are the organizations’ largest single contributors.
Simon, the Secretary of Treasury under Presidents Nixon and
Ford, wrote a blueprint for organizing the conservative agenda
in his 1978 book "Time for Truth." In it, Simon
argues that "[f]unds generated by business (by which
I mean profits, funds in business foundations and contributions
from individual businessmen) must rush by multimillions to
the aid of liberty. . . to funnel desperately needed funds
to scholars, social scientists, writers and journalists who
understand the relationship between political and economic
liberty."60
Since then Simon, first at the Institute for Educational Affairs
(IEA) (which Simon helped found in 1978 with Irving Kristol)61
and now as the President of the Olin Foundation, has worked
to transform that vision into reality. At IEA, Simon simultaneously
granted money to Epstein to help publish Takings and helped
start the Federalist Society. The foundation he now runs,
the John M. Olin Foundation, grants over $20 million to conservative
causes each year. Among Simon’s regular grantees are:
the Cato Institute’s Center for Constitutional Studies,
the Federalist Society, FREE, George Mason’s Center for
Law and Economics, the Institute for Justice, the Landmark
Legal Foundation, the Pacific Legal Foundation and the Washington
Legal Foundation.62
Richard Mellon Scaife’s support for the Takings Project
has been even more extensive both in length and breadth. The
Wall Street Journal has called Scaife "the financial
archangel for the [conservative] movement’s intellectual
underpinnings"63 and
this title fits the role he has played in the Takings Project.
In the 1980’s, the Sarah Scaife Foundation was among
the largest foundation funders of the Federalist Society,
the Institute for Educational Affairs and many of then-fledgling
conservative legal foundations. For example, in 1987, the
Foundation awarded $60,000 to both the Federalist Society
and the Institute for Education Affairs, $110,000 to the Pacific
Legal Foundation and the Washington Legal Foundation and $25,000
to the Southeast Legal Foundation.64
In the 1990s, Carthage has been the single largest contributor
to FREE, the Defenders of Property Rights, and the Washington
Legal Foundation, and a generous contributor to the Landmark
Legal Foundation 65 and
the Pacific Legal Foundation.66
The Sarah Scaife Foundation regularly funds the Cato Institute’s
Center for Constitutional Studies, PLF, NELF, Southeastern
Legal Foundation, Landmark Legal Foundation, the Federalist
Society, the Institute for Justice, and George Mason’s
Law and Economics Center.67
Go to CHAPTER
5: The Results
Endnotes
1 See National
Directory of Non-Profit Organizations (1997-98 ed); The
Right Guide, A Guide to Conservative and Right-of-Center
Organizations (1997) [hereinafter The Right Guide]; see
also Roger K. Newman, Public-Interest Firms Crop Up on
the Right, Suits with Agendas, Nat’l L.J. Aug.
26, 1996, at 22 ("funding from upwards of 500
corporations and foundations provides a $3.5 million
annual budget [for the Washington Legal Foundation],
matched only by that of the Pacific Legal
Foundation"); Institute for Justice webpage
<http://www.instituteforjustice.org>
(Institute’s FY 1996 budget exceeds $2 million); see
also David Helvarg, The War Against the Greens, at
21—22 ("[t]he Defenders [of Property Rights]
works closely with the Federalist Society, the
Competitive Enterprise Institute, and the Washington
Legal Foundation, three members of a nationwide network
of twenty-two pro-business, public interest law firms
that do anti-environmental lawsuits and litigation on a
pro bono basis, providing the anti-green movement with
tens of millions of dollars in free legal
services.").
2 See Nancie G.
Marzulla, The Property Rights Movement: How it Began
and Where It is Headed, in Land Rights: The
1990’s Property Rights Rebellion (Bruce Yandle ed.,
1995).
3 See Charles Fried, Protecting
Property—Law and Politics, 13 Harv J. L.
& Pub. Pol’y 44, 48—49 (1990).
4 Richard Perez-Pena, A
Rights Movement that Emerges From the Right, NY.
Times, Dec. 30, 1994, at B6 (quoting Richard Samp of the
Washington Legal Foundation).
5 See The Right
Can’t Have It Both Ways, supra Ch. 1, note 7.
6 Pacific Legal Foundation,
1996 Annual Report.
7 David Helvarg, Legal
Assault on the Environment, The Nation, Jan 30, 1995,
at 126 (quoting Jim Burling, PLF’s Litigation
Director).
8 See Pacific Legal
Foundation, 1996 Annual Report (1997).
9 See Jack Woodward, David
v. Goliath: Pacific Legal Foundation is Changing
Regulatory Law in the United States, Undated PLF
Pamphlet; Robert P. King, Property Rights Crusaders
Move in on Florida Growth Laws, The Palm Beach Post,
May 29, 1997, at 1A "'We only take precedent-setting
cases. . . [o]ur effort is to change the law.'" Id.
(quoting Richard R. Bradley, PLF’s Director of
Strategy and Development).
10 Maura Dolan, Giving the
Right Their Day in Court, L.A. Times, Feb. 8, 1996,
at A1 ("Foundation lawyers comb newspapers looking
for cases that have a chance of going to the U.S. Supreme
Court and in which they can offer friend-of-the-court
arguments. Like-minded conservatives also refer cases,
and the group occasionally represents people who call
with problems").
11 The four cases are Nollan
v. California Coastal Comm’n, Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992), Dolan v.
City of Tigard, 512 U.S. 374 (1994) and Suitum v. Tahoe
Reg’l Planning Agency, 117 S. Ct. 293 (1997).
12 H. Jane Lehman, Owners
Aren’t Giving Ground in Property Battles,
Chicago Tribune, Feb. 9, 1992, at 1.
13 Institute for Justice web
site, visited Feb 6, 1998,
http://www.instituteforjustice.org. (staff biography).
14 See Institute for
Justice, supra Ch.4, note 13, The Court of Public
Opinion (quoting George F. Will Mar. 7, 1993). see
also William H. Mellor, III, Can Washington
Change?, Reason, August 18, 1996, at 26 ("the
more propitious focus for libertarians should be away
from issues defined by Washington politics and on such
matters as establishing a rule of law conducive to a
society of free and responsible individuals. Whether the
issue is economic liberty, property rights, or the First
Amendment, the Constitution provides a means to check
Washington’s real-world impact").
15 See Institute for
Justice, supra Ch.4, note 13, Electronic Brochure,
Institute for Justice Approach: Private Property Rights.
16 See, Suitum v. Tahoe
Regional Planning Agency, No 96-243, Brief of the
Institute for Justice as Amicus Curiae in Support of
Petitioner (Nov. 29, 1996); Dolan v. Tigard, No 93-518
(Brief of the Institute for Justice as Amicus Curiae in
Support of Petitioner (Jan. 13, 1994); Lucas v. South
Carolina Coastal Council, 91-453 Brief of the Institute
for Justice as Amicus Curiae in Support of Petitioner
(Jan. 2, 1992).
17 The Right Guide, supra
Ch.4, note 1 at 122.
18 Margaret Kriz, Taking
Roots in Property Rights, Nat’l J at 2133
(October 6, 1996).
19 The Right Guide, supra
Ch.4, note 1 at 122.
20 See James Andrews, Conservative
Law Groups Adopt the Liberal Model, Christian Science
Monitor, Oct 3, 1994 (Meese conducts monthly meetings of
"the growing field of conservative and libertarian
lawyers who battle for property rights and against the
regulation they consider harmful to economic
growth"); Roger K. Newman, Public Interest Law
Firms Crop up on the Right, Nat’l l j., Aug. 26,
1996, at A22 ("One of the behind-the-scenes forces
in coordinating such legal campaigns has been Edwin Meese
III. . . . He chairs a monthly meeting in Washington of
representatives of upwards of a dozen groups that
network, exchange ideas and discuss what each is
doing."); see also Helvarg, supra
Ch.4, note 1, at 21—22 ("[A] nationwide network
of twenty-two probusiness 'public interest' law firms . .
. coordinate through an annual meeting sponsored by the
Heritage Foundation").
21 See Newman, supra
Ch.4, note 20, at A22 ("Conservative law firms. . .
tak[e] advantage of millions of dollars of pro bono time
offered by law firms."); Federalist Society 1996
Annual Report 8 (1997).
22 See William G.
Castagnoli, What is the WLF and Why Is It Challenging
the FDA?, Med. Marketing & Media, Apr. 1995 at
27, 28, 32.
23 See Federalist
Society, 1996 Annual Report 4, 10 (1997).
24 See id. at 8
(listing the Institute for Justice, the Pacific Legal
Foundation and the Washington Legal Foundation as among
the organizations that have taken advantage of the
Society’s "pro bono apparatus".).
25 See id.
26 As takings challenges have
become more viable, there has developed an increasingly
lucrative for-profit practice in representing property
owners, encouraging the founders of the more prominent
legal foundations to establish for-profit affiliates to
litigate takings cases on behalf of fee-paying
developers, see Love Your Work?, Legal
Times, Nov. 24, 1997, at 3 ("Noted environmental and
property rights lawyer Roger Marzulla has left the D.C.
office of Akin, Gump, Strauss, Hauer & Feld to open
shop with his wife Nancie Marzulla. Marzulla &
Marzulla, launched [early this month,] is sharing space
with the nonprofit Defenders of Property Rights, where
Nancie Marzulla doubles as President. The new firm is
primarily representing smaller clients in litigation
against the government."); The Right Guide, supra
Ch.4, note 1, at 253 (PLF also contracted the Sacramento
firm of Zumbrun, Best & Findley for management and
legal services. The firm was paid $212,661. The firm is
affiliated with PLF president, Ronald Zumbrun, who is
paid as an independent contractor through the firm.).
27 National Directory of
Non-Profit Organizations (1997—1998 Ed.).
28 Directory of Associations
at 100 (1997 Ed.).
29 See Brief Amici
Curiae of the National Association of Home Builders and
the Building Industry Legal Defense Foundation in Support
of Petitioner, at 1 Suitum v. Tahoe Regional Planning
Agency, No. 96—243, 1997 U.S. LEXIS 3233 (listing
"myriad" of Supreme Court cases in which the
NAHB has appeared as an amicus on behalf of developers);
Steve Ketch, Builders Seek Protection of Property
Rights, Chic. Trib., Jan. 25, 1987 ("[t]he
[NAHB] has a litigation program that aids local
associations in certain cases where suits to protect
property rights are involved.").
30 See National
Ass’n of Home Builders v. City of Los Angeles, No.
96—55274, 1997 U.S. App. LEXIS 13877 (9th Cir. June
9, 1997); National Ass’n of Home Builders v.
Chesterfield County, No. 95—3213, 1996 U.S.App.
LEXIS 18838 (4th Cir. June 30, 1996); see also
National Ass’n of Home Builders v. Babbitt, 949
F.Supp. 1 (DC Cir. 1996).
31 The Federalist Society,
Membership & Benefits (nd.).
32 Terry Carter, A National
Revival Meeting for Takings Lawyers, Chicago Daily
Law Bulletin, Apr 2, 1992 at 2.
33 See id.
34 Id.
35 Letter from Julia Levin, National
Heritage Institute, and Enrico Nardone, National
Audubon Society, to Charles Alan Wright, President, The
American Law Institute (Oct 24, 1996) (on file with
CRC).
36 Institute for Justice, supra
Ch.4, note 13.
37 Id.
38 Id (quoting J.
Stanley Marshall, Chairman, The James Madison Institute).
39 See Alliance For
Justice, Justice For Sale 70—82 (1993).
40 FREE was founded and is
directed by John Baden a "free market
environmentalist," who along with Richard Epstein
serves as an adjunct scholar at the libertarian Cato
Institute See Cato Institute webpage
(http://www.cato.org/). Baden is a vocal proponent of
strong constitutional protection of property rights.
According to Baden "property rights are under
siege" from environmental regulations such as the
Endangered Species Act, see John Baden, Property
Protection and Property Rights in Harmony, Seattle
Times, Mar. 30, 1993, at A7 and "[t]he Constitution
requires due compensation when government takes or
restricts private owners’ property." John A.
Baden, A Green Campaign Speech For A Better
Environment, Seattle Times, Nov. 13, 1996, at B5.
Baden’s other credentials include editing Environmental
Gore, see Environmental Gore (John A. Baden
ed., 1994), a collection of essay’s critiquing Vice
President Gore’s Earth in the Balance which includes
an essay by Nancy Marzulla arguing that property rights
are the "underpinning" of all the rights
protected by the constitution and that private property
rights should be society’s "central organizing
principle." See id. at 219—21 (quoting
Gore’s Earth in the Balance).
41 See James L.
Huffman, A Coherent Takings Theory At Last: Comments
on Richard Epstein’s Private Property and the Power
of Eminent Domain, 17 Envtl. L. 153, 177 (1986)
("Epstein is on the right track in urging judicial
activism . . ."); James L. Huffman, Judge
Plager’s "Sea Change" in Regulatory
Takings Law, 6 Ford. Envt’l L.J. 597, 609 (1995)
(praising Judge Plager’s opinion in Florida Rock,
but suggesting that it could have been improved by an
even closer adherence to the doctrine outlined by
Professor Epstein). Huffman also serves as a board member
of the Oregonian’s in Action Legal Center, a the
non-profit property rights group with a mission to
"protect Constitutional rights of landowners . . .
through litigation," that litigated Dolan v. City
of Tigard before the Supreme Court. See The
Right Guide, supra Ch.4, note 1 at 251—52.
42 FREE invitation to federal
judge dated Jan 7, 1996 (on file with
CRC)("Conference and travel expenses are paid and
time is provided for cycling, fishing, golfing, hiking,
and horseback riding"). See also FREE
webpage<http://www.free-eco.org/free>.
43 See FREE, supra
Ch.4, note 42 (web page).
44 FREE invitation to federal
judge dated Jan 7, 1996 (on file with CRC).
45 Id; Judges Financial
Disclosure forms (copies on file with CRC).
46 In 1994, the Olin
Foundation gave $50,000 to the New England Legal
Foundation, the Plaintiff’s counsel in Preseault,
for "property rights litigation" John M. Olin
Found. Inc., 1994 Annual Report (1994).
47 In 1995, the Olin
Foundation gave $25,000 to FREE to support their judicial
seminars, see John M. Olin Found. Inc., 1995
Annual Report (1995). FREE attendees, Judges Plager,
Mayer, Newman and Rader provided four of the six votes
for Preseault. Preseault 100 F.3d 1525 (Fed. Cir.
1996); Judges Financial Disclosure Forms (copies
on file with CRC).
48 M.J. Murdoch Charitable
Trust, 1993 Grants Approved by Classification ($78,000
grant to FREE); 1995 Annual Report ($150,000 grant to
FREE in 1995).
49 1994 Foundation Grant Index
at 330 ($200,000 grant from Murdoch to PLF in 1992); 1994
Annual Report ($200,000 to PLF in 1994); 1996 Annual
Report ($200,000 to PLF in 1996).
50 See Sarah Scaife
Foundation, 1995 Annual Reports 9 (1995) (reporting
grants to PLF of $200,000 and $175,000, respectively).
Sarah Scaife Foundation’s 1995 Annual Report makes
special note of PLF’s work in litigating property
cases: "[f]or more than twenty years, the Pacific
Legal Foundation has supported the preservation of
individual and economic freedoms as set forth in the
Constitution. Its successes in litigating property rights
cases ensure its position as a leader in strengthening
these guarantees for the general public." Id.
Scaife granted $200,000 to PLF "to enable the
Pacific Legal Foundation to continue its work." Id.
51 See Carthage
Foundation 1993—96 Annual Reports (1993, 1995 &
1996) (reporting grants to FREE of $100,000 in 1993, 1995
& 1996, 1993 Foundation Grants Index at 655 ($100,000
grant to FREE in 1990).
52 1994 Foundation Grants
Index at 327 (in 1991, Carthage granted $75,000 to PLF);
1993 Foundation Grant Index at 307 (in 1990, Carthage
granted $275,000 to PLF).
53 See The Right Guide,
supra Ch.4, note 1 at 122.
54 The question of whether
Federal Circuit judges, by attending these seminars,
actually violate the ethical restrictions imposed by the
Ethics Reform Act of 1989 appears to be an open one. See
5 U.S.C. §7353 (a)(2)-(b)(1). The law provides that
judges, shall not "accept anything of value from a
person . . . whose interests may be substantially
affected by the performance or nonperformance of the
individual’s official duties" unless the gift
is permitted under "reasonable exceptions"
established by the Court’s ethics office. See id.
The Court’s ethic’s office, the Administrative
Office of the United States Courts, in turn, has approved
judges attending educational seminars unless "the
sponsor, or source of funding, is involved in litigation,
or likely to be so involved, and the topics covered in
the seminar are likely to be in some matter related to
the subject matter of such litigation." Advisory
Committee on Codes of Conduct, Advisory Opinion No. 67.
The questions of whether the required inquiry into the
"source of funding" for the seminars reaches to
the foundations funding FREE, and whether the foundations
that simultaneously fund FREE and litigation in the
Federal Circuit are "involved" in litigation
within the meaning of the ethics rule have not, to date,
been addressed by the Administrative Office.
55 The proponents of the
Project turned to procedural reform after spending much
of the 104th Congress trying,
unsuccessfully, to pass legislation changing the
substantive standards applicable to takings cases. See
Allan Freedman, Property Rights Advocates Climb the
Hill to Success, Congressional Quarterly, Oct. 25,
1997.
56 See John Brinkley, Lobby
Gave Landowner Property Rights Measure, Ventura
County Star, Nov 5, 1997, at A1 ("Rep. Elton
Gallegly said his bill to give landowners expedited
access to federal courts was written for the benefit of
'ordinary landowners,' but, in fact, its author was an
attorney for the National Association of Home
Builders."); see also Jim Vande Hei, Home
Builders, Pressured By GOP, Stay Out of N.Y., Roll
Call, Oct 23, 1997 at 1 ("According to documents
obtained by Roll Call, officials of the Home Builders
wrote Rep. Elton Gallegly’s (R-Calif.) private
property bill, a top issue for the association that hit
the House floor yesterday").
57 See Freedman, supra
Ch.4, note 55, at 2591 "It is a classic tale of
Washington influence and how a single association
responsible for $295,250 in campaign contributions in the
first six months of 1997 and $57,500 in soft money
contributions to both parties mobilized support with a
small army of lobbyists . . ." Id.
58 See The Citizens
Access to Justice Act of 1997, S 1256, §5 (1997).
59 Anthony Lewis, The War
on the Courts, NY Times, Oct. 27, 1997 at A23. Even
though President Clinton has generally appointed more
moderate, older, more experienced jurists to the bench
than his predecessors, the Senate confirmed just 17
judges in 1996—the lowest election-year total in
over 40 years—and 36 judges in 1997. Lewis calls
"the campaign by the far right to block President
Clinton’s appointments to the Federal Courts"
"as important as any political effort in this
country today." Id.
60 Stefanic & Delgado, supra
Ch. 3, note 22, at 90 (quoting William E Simon, A Time
for Truth (1978)).
61 See Stefanic &
Delgado, supra Ch. 3, note 22, at 110. According
to Stefanic and Delgado, the IEA was formed by the John
M. Olin, Sarah Scaife, JM, and Smith Richardson
foundations to serve as a clearinghouse for corporate
philanthropy, linking conservative scholars and thinkers
seeking funding with corporations and foundations wishing
to further a conservative public policy agenda. See
id. at 109—110. In 1990, the IEA merged with the
Madison Center and became the Madison Center for
Educational Affairs. Id.
62 See John M. Olin
Found., Inc. 1996 Annual Report.
63 Phil Kuntz, Citizen Scaife,
Wall Street Journal, Oct 25, 1995.
64 Foundation Grant Index, 18th Edition, (1989) at 651-52.
65 See Carthage
Foundation, Annual Report 1993-1996.
66 See 1993 Foundation
Grants Index at 307 ($275,000 in grants in 1990).
67 See Sarah Scaife
Foundation, Inc., Annual Reports 1994-1996.
To CHAPTER 5: The Results
To Table of Contents for The
Takings Project: Using Federal Courts
To Attack Community and Environmental Protections
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