Pacific Legal
Foundation Releases “State of Property Rights” Report
Contact: Dawn Collier
Phone: (916) 419-7111
Sacramento,CA; April 20, 2005: April
20, 2005: Pacific Legal Foundation, the nation’s leading defender of
property rights in the courts, today released its first annual “State of
Property Rights” report that finds a growing national movement to reclaim
individual property rights while government agencies continue their regulatory
assault on those rights.
PLF reports that a number of high-profile property rights cases and voter
initiatives in 2004 show that protecting property rights remains a
front-burner issue for many Americans, especially in battleground regions
where overzealous environmental and “antigrowth” regulation, and property
taxation, have come to a head.
Yet, while there have been notable successes in some areas on behalf of
Americans’ constitutionally protected property rights, officials at all
levels of government around the country continue to impose ever more
burdensome limits on the use of private property—without compensating
property owners.
“Government too often imposes outlandish limits on the use of private
property,” said M.
David Stirling, Vice President of Pacific Legal
Foundation. “Over the last year, we’ve been encouraged to see more and
more people taking a stand against property seizures and asserting their
constitutional rights. Oregon voters passed a landmark property rights
initiative, voters in Hawaii said enough is enough to skyrocketing property
taxes that are driving them from their homes, and Connecticut families whose
homes were taken by the government to sell cheaply to corporate interests
finally got their day before the United States Supreme Court.”
“Unfortunately, government continues to unreasonably restrict people’s
land use, often in the name of environmental protection,” Stirling said.
“Too often government uses guesswork and bad science to impose needless
restrictions on private property, never compensating the owners or doing the
real scientific research necessary to determine whether the added regulation
will benefit the environment.”
Among the positive highlights for advancing property rights over the
last year are:
- In November, Oregon voters passed Measure
37, a groundbreaking initiative that requires government agencies
to compensate property owners for lost property value caused by government
regulation. The measure passed with more than 60% of the vote in a state
that has been saddled for over 30 years with the most stringent land use
control laws in the country. PLF is currently helping to defend Measure 37
against court challenges.
- In December, the federal government agreed to pay California farmers $16.7
million for contracted irrigation water it confiscated and diverted to
protect fish. The government agreed to a settlement
after a federal judge awarded the affected farmers a whopping $26 million a
year earlier. The judge ruled the farmers were entitled to the compensation
under the Fifth Amendment, which protects private property from government
seizure without compensation. The case, Tulare Lake Basin Water Storage
District v. United States, is widely recognized as an unprecedented
decision that could have far-reaching implications on how the Endangered
Species Act and other environmental laws are implemented when water
diversions are at stake. PLF supported the farmers in a friend of the court
brief and is working with other farmers pursuing similar claims.
- In the fall of 2004, the United States Supreme Court announced it would
hear four property rights cases in the 2004-2005 session, setting the stage
for a stunning string of decisions that could change the landscape of
property rights for years to come. In the most high-profile case,
homeowners in New London, Connecticut, stood up for their rights by
challenging their city’s effort to throw them out of their homes under the
power of “eminent domain” to make way for private businesses to build a
theater complex and commercial center. Other cases this term include a rent
control case out of Hawaii, a San Francisco case seeking to keep federal
courts open to property rights claims, and a water rights case out of
California’s Central Valley. PLF filed friend of the court briefs in all
four cases.
- In the fall of 2004, western property and business owners who had seen
their property rights frozen and businesses stymied because of excessive
critical habitat designations to protect fish welcomed a Bush administration
decision to reduce critical habitat areas by as much as 80 to 90%. The
decisions involved bull trout in the Pacific Northwest and 19 populations of
west coast salmon and steelhead protected by the Endangered Species Act. The
new critical habitat designations were made using the “Alameda whipsnake
test” established as a result of PLF’s landmark court win in 2003.
- In July, the Michigan Supreme Court unanimously overturned
its infamous Poletown decision that allowed Detroit to raze an entire
neighborhood and transfer the property to General Motors to build an auto
plant. The 1981 decision opened the floodgates of eminent domain abuse by
local governments, with state courts nationwide redefining the Fifth
Amendment’s “public use” requirement to include giving seized property
to megabusinesses like Costco to generate a higher tax base. PLF supported
the homeowners in the case.
While these successes helped to begin a roll back of decades of actions
hostile to property rights, there were detrimental actions to property rights
as well.
“Governments continue to impose unreasonable limits on the ownership and use
of private property,” Stirling said. “For example, rural property owners
outside of Seattle are victims of a government ordinance denying them the
right to use two-thirds of their property—essentially as a no-touch zone.”
Among the negative developments over the last year are:
- In October, Seattle-based members of the King County, Washington, county
council enacted a “critical areas ordinance” that requires rural
property owners with more than 5 acres to set aside as much as 65% of their
property in its natural state indefinitely— without compensation. Property
owners stormed downtown Seattle in protest, but efforts to put a referendum
on the ballot to repeal the ordinance were blocked by county officials in
the courts. On behalf of a grassroots property rights group and individual
property owners, PLF has filed suit to invalidate the ordinance.
- In November, Kauai, Hawaii, voters overwhelmingly passed a measure similar
to California’s Prop. 13 to rein in property taxes that have increased 50%
since 1998. Instead of honoring the voters’ mandate, county officials sued
to block the measure, claiming that only government—not voters—can make
decisions affecting property taxes. The county prevailed at the appellate
court level and PLF is now taking the case to the Hawaii Supreme Court.
- In April, 2004, the United States Supreme Court declined to hear three
cases asking for badly needed clarification of the limits on federal
authority to regulate wetlands under the Clean Water Act. Despite the
Court’s landmark
decision in Solid Waste Agency of Northern Cook County v.
United States (SWANCC) in 2001, federal courts have continued to define
federal wetlands expansively—and illegally. The Bush administration has
also declined to issue regulations implementing the decision. As a result,
government continues to assert jurisdiction over private property containing
rain-filled depressions in the ground that are often little short of mud
puddles. Property owners are forced to pay hundreds of thousands of dollars
for permits they should not be required to get or risk millions of dollars
in penalties—and even jail time—for permit violations. PLF is
representing property owners in several key cases on this issue and has
filed a petition for review at the United States Supreme Court.
- In June, 2004, a federal fisheries agency further harmed property owners
when it proposed a policy that fails to comply with PLF’s landmark
court victory in Alsea Valley Alliance v. Evans, where a
judge ruled the government illegally ignored prolific numbers of hatchery
fish when it listed Oregon coast coho as a threatened species. The ruling
forced the government to reexamine 26 listings of salmon and steelhead
populations in the Pacific Northwest. However, when the government issued
its new policy, rather than comply with the court ruling, the government
proposed to “relist” all 26 populations—and add a new one. The
decision is a slap in the face to western property owners, farmers, and
businesses that have had their livelihoods held hostage by regulatory
restrictions to protect fish that are not even threatened. PLF has notified
the government that it will file a lawsuit challenging the listings if the
agency issues the proposal as its final policy in June, 2005.
As a result of these important events in 2004, PLF predicts 2005 will be a
landmark year for property rights since a number of high-profile cases stand
to be decided.
“In the year ahead, we hope the Supreme Court will return our judiciary to
the historic role of protecting individual property rights and use the four
cases before it to clearly move in that direction,” said PLF’s Stirling.
“We hope that a growing population of property owners will assert their
rights whenever government at any level infringes on those rights, whether by
eminent domain, confiscatory regulation of land use, imposition of rent
control, or the taking of water from farmers.”
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Foundation+Releases+%93State+of+Property+Rights%94+Report