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SPARKING A REVOLUTION IN TAKINGS LAW:
Judicial Activists Undermine Roots of Environment & Safety
Laws
The novel legal viewpoint behind the Takings Project conflicts
with both the intent and plain language of the Constitution's
Framers, and the well-developed 190-year body of Supreme Court
rulings. But judges on the Court of Federal Claims and Federal
Circuit Court of Appeals have boldly chiseled away at this
long-standing interpretation, producing what Lewis & Clark
Law School professor Michael Blumm, one of the nation's top
experts on environmental law, calls a "judicial property
rights revolution."
In its entirety, the Takings Clause reads: "nor shall private
property be taken for public use, without just compensation."
Government actions that physically expropriate property
from owners always required compensation. But the Supreme
Court has historically required compensation for regulatory
impositions only in rare cases where the character
and impact were so severe as to be akin to physical expropriation,
and where regulators have been unable to link a regulation
to an important public interest.
Two Courts Fly in the Face of Precedent
A number of key rulings passing through both the Claims Court to the
Federal Circuit of Appeals have side-stepped the rich body
of takings case law developed by the Supreme Court. Almost
without exception, they required significant judicial gymnastics
even to reach the merits of the cases. Among them:
- Florida Rock v. U.S. (Federal Circuit Court of Appeals,
1994) - Judges Plager and Rader ruled, for the first time,
that a government wetlands regulation could violate the
Takings Clause if it worked a "partial taking"
of property, despite neither side having argued that a partial
taking occurred. The decision ignored 200 years of binding
Supreme Court precedent distinguishing physical takings
from regulatory impingement - a distinction that is the
very touchstone of takings doctrine - as well as the strict
balancing test used by the high court for cases of the latter
type.
- Loveladies Harbor v. U.S. (Federal Circuit Court
of Appeals, 1994) - Judges Plager, Rader and Clevenger affirmed
Chief Claims Court Judge Smith's ruling that the relevant
parcel of property for takings analysis was only the wetlands
burdened by the regulation, not the entire tract (which
was subsequently developed and sold by the landowner.) The
finding opened another door to almost limitless partial
takings claims, potentially allowing developers to show
total regulatory taking simply by dividing a larger property
down to an effected area. Plager boasted that his rulings
"removed from regulatory takings the vagaries of the
balancing process" of competing public and private
interests.
- Preseault v. U.S. (Federal Circuit Court of Appeals,
1996) - Judge Plager wrote a plurality opinion for an en
banc Federal Circuit opinion - essentially an appeal
from a three-judge panel to the entire l2-member court -
rejecting the argument that federal regulations in place
at the time of purchase "inhere in the title"
of a parcel. Intervening despite the plaintiffs own failure
to appeal to appeal within the allotted time, the en
banc court overturned the panel finding and granted
a takings claim for a land use restriction already in
place when the plaintiff purchased the parcel (and thus
reflected in the purchase price). Preseault effectively
guts the rail banking provisions that preserve rights-of-way
under the Federal Rails-to- Trails Act.
At best, the rulings have sewn confusion, emboldened congressional
activists, and chilled enforcement of important laws. At worst,
they pave the way for a revolutionary reinterpretation of
the Takings Clause by the Supreme Court.
Taking the Extreme View
According to Richard Epstein, the leading legal theorist of the Takings
Project, virtually any government limit on land use is a taking
that must be compensated "no matter how small the alteration
and no matter how general its application." Epstein notes
enthusiastically that this interpretation 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."
Epstein's expansive theory has been roundly rejected by legal scholars
on both the left and the right. But thanks to aggressive cultivation
by the Takings Project, it lives on in specially chosen branches
of the federal judiciary. © 1998 Environmental Media Services
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