Preservation acts - environmental laws and the right of property

Reason, Oct, 1994 by Rick Henderson

The Property-rights movement steps out of the shadows.

BRANDT CHILD PLANNED TO BUILD A campground and golf course on land he owns outside Moab, Utah. But after he started construction, the Fish and Wildlife Service claimed that the natural springs on Child's land provide habitat for the endangered Kanab Amber-snail. The government halted construction and forced Child to fence off the property, rendering it worthless. Child claims that the effective condemnation of his land has cost him $2.5 million.

In 1986, Maine residents Gaston and Monique Roberge wanted to provide money for their retirement by selling a lot they had purchased 22 years earlier. After the Roberges got an offer of $440,000 for the land, the U.S. Army Corps of Engineers claimed that the property was a wet-land and that the Roberges had let the city illegally "fill" the property with dirt in 1976. When the Roberges removed the dirt, the property became less desirable as a home site; offers to buy the land disappeared. After spending thousands of dollars hiring consultants to comply with bureaucratic edicts, the Roberges have exhausted their retirement investments, still have no offers for their land, and live on Social Security.

Richard Ehrlich owns a piece of property in Culver City, California, on which he constructed a private tennis club. The tennis club went out of business. Ehrlich then tried to get permission to build 30 condominiums on the land. Culver City, a separately incorporated town surrounded by Los Angeles, approved Ehrlich's proposal on the condition that he pay the city $280,000 so that it could build public tennis courts to "replace" the courts at Ehrlich's club. The condo association would also have to maintain the public courts after they were built.

Stories like these have become all too common over the past decade or so, as state, city, and federal regulations have encroached ever further into the lives of even small property owners. But as such regulations, especially those ostensibly intended to protect wetlands and endangered species, affect average property owners and business operators, hundreds of gross-roots private property organizations and inholders groups are fighting back. And people like Child, the Roberges, and Ehrlich are increasingly winning. In legislatures, the courts, and among the general public, the property-rights movement is chalking up victories.

On July 14, for instance, the House of Representatives passed an amendment to the California Desert Protection Act that could deter some regulatory "takings" of private property like those mentioned above. The amendment, sponsored by Rep. Billy Tauzin (D-La.), would prevent the government from reducing the appraised value of private property it acquires when the land harbors threatened or endangered species. If Tauzin's amendment applied to the entire Endangered Species Act, environmental regulators would have to pay Brandt Child the fair market value of his property before the snails were found.

Even though the Tauzin amendment, which passed by a 281-148 vote, applies only to the desert bill, it should help the owners of 700,000 acres of private property who would have otherwise lost most uses of their land. (See "Parking Costs," July.) And the amendment caught environmentalist sponsors of the bill, led by Rep. George Miller (D-Calif.), off guard. After the amendment passed, Miller temporarily removed the bill from consideration; it passed two weeks later, 298 to 128, with the amendment attached. Sen. Bennett Johnston (D-La.) will head the conference committee that reconciles the Senate and House versions; he has assured Tauzin and the amendment's supporters that the amendment will be part of the final bill.

THE FIFTH AMENDMENT TO THE U.S. Constitution requires the government to provide "just compensation" any time regulators or legislators "take" private property for public use. Until recently, individuals would receive payment only for those takings resulting from eminent domain--in other words, when land was condemned so that government could build a highway or some other public-works project.

But the 1985 publication of University of Chicago law professor Richard Epstein's Takings.' Private Property and the Power of Eminent Domain provided intellectual ammunition for the argument that regulations can restrict a land owner's rights just as much as overtly condemning property. Epstein's reasoning swept through law schools and into the courts, where Reagan appointees used the new takings rationale to limit the reach of environmental regulators. Such public-interest law firms as the Pacific Legal Foundation, the Washington Legal Foundation, the Institute for Justice, and Defenders of Property Rights represented clients who were victims of regulatory takings and filed amicus briefs in federal and state court cases.

In three federal cases, Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Dolan v. City of Tigard (1994), the U.S. Supreme Court ruled that land-use planners could no longer expect a free lunch. Regulations meant to serve legitimate public purposes must not place a disproportionate burden on the property owners being regulated.