Paying to Save Species

After 32 contentious years, the Endangered Species Act may finally get amended so that landowners are compensated when the Federal government essentially seizes their property to protect endangered plants and animals. Naturally, poltiical environmentalists are up in arms because they don't want to have to pay for the protection that they've been getting for free. My favorite clueless enviro quotation from the Washington Post story is below:

"Even schoolchildren know you can't protect plants and animals if you don't protect the places where they live," said Susan Holmes, senior legislative representative at Earthjustice, an advocacy group.

Ms. Holmes forgets some other more important playground wisdom: "Even schoolchildren know you can't take one kid's toys and just give them to some other kid without their permission."

Comments

[Jason Ligon]

Who is the 'they' that will suddenly be paying? They is we.

[theOneState]

Yeah but would Bush ever sign a bill w/ such a high price tag?

[Warren]

This isn't much better. While it does put a stop to the looting, it creates another nipple on the public tit. Those favored by them in power will be allowed to suck on it.

I don't know. Is it any better picking the pockets of a million people for one dollar than robbing one guy for a million? At least it seems fairer, and that gives me a sense of comfort.

[Phil]

All the other pro and con arguments aside, this doesn't make me optimistic: It also would allow the interior secretary to set a scientific standard for declaring a species threatened or endangered, rather than asking outside scientists to make judgments on a case-by-case basis.

GIven the Bush administration's noted preference for political answers over scientific evidence (witness the recent shenanigans with the morning-after pill, among other things), I hesitate to support any bill which would give the Interior Secretary (!) this kind of standard-setting power. The same argument would apply to a hypothetical Secretary that would be far too generous in classifying species as threatened.

Beyond that, it makes little sense not to decide on a case-by-case basis. Every species has different habitat and sustainability needs, and occupies a different niche in its particular corner of the ecosystem.

[joe]

The devil's in the details, but in theory, making the preservation of important habitat profitable makes sense. No more "shoot, shovel, and shut up."

But having endangered determinations come from Gale Norton instead of, you know, people who know something about biology - typical anti-science Republicanism.

[Ron Bailey]

Jason:

The Fifth Amendment to the Constitution says "nor shall private property be taken for public use, without just compensation." Protecting endangered species is a "public use." Of course, one can question whether or not the Feds should bother at all with protecting snail darters or the hairy umbrella wort. If you don't think that Congress should be spending "our" money this way, throw the bums out. All I'm saying is that if it's wrong to seize someone's land without compensation to build a road, then it's wrong to take her land to protect the Hungerford's crawling water beetle.

[Douglas Fletcher]

joe, you're such a snail darter.

[theOneState]

Robbing a million people is soooo inefficient.

I think this is good, but Warren's caution is probably justified. Now instead of "accidentally" shooting a little endangered squirrel, you'll sneak one onto your worthless piece of property and have it condemned.

[Jason Ligon]

Ron:

Perhaps I didn't make my point clearly. I was targeting this sentence:

"Naturally, poltiical environmentalists are up in arms because they don't want to have to pay for the protection that they've been getting for free."

The gist of my point is that greenies don't think this way. They are used to spreading the costs of their havok over the whole country, preferably concentrating on dirty rich folk. They never seem to care about costs, so I can't imagine that they would care one whit about the dollars in question. What they care about is the possibility that a larger number of impacted people paying the cost might cause them political trouble. Not that I agree with that concern either, but I think that is why they are making a fuss.

[Eric]

Ron,

If you were actually concerned about government theft of land, why is it we never see you demanding return of land to American Indians or railing against coal bed methane "taking" private homes by degrading their livability and destroying aquifers.

Might Exxon, Philip Morris, and the other corporate funders who pay you for your constant stream of pro-industry PR via the "Competitive Enterprise Institute" disapprove?

[joe]

'Protecting endangered species is a "public use."'

Yes, Ron, no question. The question is whether, or when, regulating land without a phyisical invasion or a change in legal ownership is taking it.

For you originalists out there, the answer was clearly NO at the time the Constitution was written. However, what with it being a living document and all, the concept of a "regulatory taking" was discovered emanating from one of its penumbras in the second half of the 20th century. Which is probably smart, what with the changing practices and understandings and all. (Ron - neener neener nee-ner.)

So now, as I understand it, the doctrine is that regulation = taking when the regulation removes all economic value from the land, and prevents the owner from being able to use it for his own enjoyment. This bill seems to go well beyond that, and would compensate owners even if their land, under the ESA, still has plenty of economic potential and can be enjoyed by its owner. Of course, it's tough to say exactly, because the details of the bill have been interpretted and described to us by a journamalist.*

*joe's rule of journamalism: every article about a specialized field of knowledge will contain at least one significant error of fact, and one significant misinterpretation.

[Ron Bailey]

Jason:

Thanks for clarifying for me. I agree with you. One additional thought, if the these amendments pass, we will then find out how much the American people (and their elected representatives) really value endangered species.

[Seamus]

"They are used to spreading the costs of their havok over the whole country, preferably concentrating on dirty rich folk."

But "concentrating on dirty rich folk" means they *aren't* spreading the costs of their [havoc] over the whole country"; they're trying to make a few rich folks (and others who happen to be unluckly enough to have critical habitat on their property) bear all the costs. They know that if the rules required that the costs to be spread evenly (or if not actually evenly, given our progressive tax system, but just more broadly), the people bearing those costs would be a substantial voting block, and they might not think the price one worth paying.

[Dave W.]

Yeah but would Bush ever sign a bill w/ such a high price tag?

couple possibilities:

1. he doesn't think the land purchase provision will ever be used (he seems to be doing his damndest to drain gov't coffers . . .).

2. he thinks that trying to save (at least some) endangered species is a worthwhile matter of interstate commerce. Maybe he perceives a potential Tragedy of the Commons problem out in the laissez faire world with respect to (at least some) of the species. Not everybody places zero economic value on maintaining genetic diversity.*

3. he thinks this is a good way to quantify and rank our policy priorities in a transparent way. "I like saving species generally, but this one will just cost too, too much relative to its margin of expected benefit."

FOOTNOTE:

* This is where these H'n'R discussion devolve down into a burden of proof issue. Usually somebody will say that genetic diversity (or global warming or intelligent design or bad human cloning) have not been sufficiently proven, so we must snap back to our default positions: no global warming, no intelligent design, no worries about human clones, etc. Of course, this binarism is wrong. Science and reason, in the non-noumenal anyway, are more agnostic than that. What you are supposed to do is assign probabilities as best as you can guess, and then discount various sets of prospective economic consequences by multiplying the $$$ number by the probability. You see very little of that approach on H'n'R, sadly.

[joe]

"Yeah but would Bush ever sign a bill w/ such a high price tag?"

I don't know, do endanged species need prescription drugs?

[Mike]

One additional thought, if the these amendments pass, we will then find out how much the American people (and their elected representatives) really value endangered species.

People stopped paying attention to how much their government spends a long time ago. Environmentalists should love this: their supporters don't care about the budget, and their opponents will be happy to get paid for every endangered tree slug they can truck in. It'll do little to alienate the ESA supporters and should do quite a bit to appease the nay-sayers.

It's amusing, in these economically ignorant times, to see people arguing that the price tag might just be too high. Hah! Tax cut! Tax cut! Tax cut! Spend! Spend! Spend!

[Ron Bailey]

joe: Do you have a rule for the accuracy of blogging comments?

Let's take the case of zoning which I assume you would agree that the Framers would not have considered since it wasn't invented until 1916 or so. What's interesting about zoning and the reason that most people don't resist it is because zoning generally aims to increase the value of property not decrease it. Historically "penumbras emanated" from the Fifth Amendment in order to justify what became known as "regulatory" takings. What I ams suggesting is that we cast a bit more light from the relatively clear language of the Constitution and dissipate those pesky penumbras so that people can be compensated when the government lowers the value of their property.

Eric: Sigh. You're lack of imagination in deploying the tired old "corporate shill" ad hominem is not just wrong, it's tediously boring.

That being said, how far we go back in righting historical wrongs is an interesting question to which I don't have any ready answers. Therefore as Wittgenstein admonished us: "Whereof we know not, thereof we must remain silent."

[quasibill]

The big problem with Joe's historical analysis is that the federal government wasn't regulating land use when the document was first in use. Nor did they foresee such a power in the federal government. As Ron noted, zoning didn't come into play until 100 years ago.

So he may be right about "regulatory takings" being a right discovered from a "living document," it only tells half the story. The other half, of course, being that the power to so intimately regulate land use is the result of "living document" interpretation in the first place.

Just so we hold Joe to his own standard of truth in reporting...

[joe]

Ron, the clear language of the Constituion refers to "takings," which for several hundred years before the Constitution, at the time of the drafting and adoption of the constitution, and nearly two centuries thereafter, referred to the government seizing ownership of your land. It had absolutely nothing to do with "lowering the value of your land."

Then such practices as zoning and environmental regulation came along (those "changing practices and understandings" I mentioned earlier), and in light of those changing practices and understandings, the defininition of "taking" was changed by the courts, out of concern for the poor, oppressed property owner, and the recognition that the horse-and-buggy-on-mud-roads definition of "taking" was inadequate for contemporary practices.

If you want to clear away penumbras and emanations, then we're going back to the 1790s, and there is absolutely no compensation required for reductions in value from regulation. And If you want to criticize the accuracy of my comments, then you're going to have to refute, rather than restate, my factual statements.

[Dave W.]

Interesting quote from a guy who spent the second half of career repudiating the first.

[joe]

"The big problem with Joe's historical analysis is that the federal government wasn't regulating land use when the document was first in use."

Hence my use of the term "changing practices and conditions." As far as my "honesty" goes, the fact that you could have made your point by cutting and pasting from my post seems to suggest that it's in pretty good shape.

Really, fellas, I feel your pain in having to argue a position you've spent so much effort trashing. And by "feel," I mean, "take great pleasure at."

[ed]

I say eat the creatures that are tasty and save those that are disgusting-looking or taste bad. This policy should average everything out nicely.

[quasibill]

"Really, fellas, I feel your pain in having to argue a position you've spent so much effort trashing. And by "feel," I mean, "take great pleasure at.""

You lost me on that one. What position have I spent so much effort trashing? Regulatory takings? Compensation for them? Living consitution?

I actually don't think the Constitution allows the federal government to regulate as it does. So I don't think there is a need to create a right to compensation for such regulatory takings.

What was it that you thought I was arguing for or against?

[joe]

OK, quasibill, if you are denouncing Bailey's position on regulation counting as a taking, then I take it back.

[Ron Bailey]

joe:

I guess I haven't been clear enough. The courts have been wrong that "changing practices and understandings" permit such "takings" and that legislation such as that proposed by Pombo is needed to correct those rulings. My historical point about zoning is that it would never have been accepted politically if it had pervasively lowered property values.

As an historical note, under the common law of nuisance (which applied when the Constitution was adopted), if someone lowered the value of your property by noxious activities next door, you could sue for compensation. It may have been the case that you couldn't sue the government for its noxious activities next door under a theory of sovereign immunity, but it was surely the case that if the government engaged in activities on your property, you would be compensated.

[quasibill]

"OK, quasibill, if you are denouncing Bailey's position on regulation counting as a taking, then I take it back."

In a strictly legal sense, yes. I do agree with his position from a philosophical sense, though, depending on the circumstances. Philosophically, Lucas was right (the SCOTUS case finding regulatory takings compensable) - the parties stipulated that the regulation left the land devoid of value. To me, whether you physically invade land or use the monopoly of violence to render land absolutely valueless is a distinction without a difference. (you can say that the regulation did no such thing, and I would probably agree, but that was the stipulation before the Court).

[joe]

Ron,

"My historical point about zoning is that it would never have been accepted politically if it had pervasively lowered property values."

Then your historical point is factually incorrect. Tenement reform reduced the value of land by limiting development potential, and that was accepted politically. And zoning reduces the value of individual property owner's land - the poor Chinese laundromat owner, for example, in the Euclid case. In fact, all of the landowners in a residential zone have their property values reduced compared to their lots' potential as sites for commercial, rental housing, or industrial development. They just weren't interested in developing their property for those uses, and cashing in on that potential.

"It may have been the case that you couldn't sue the government for its noxious activities next door under a theory of sovereign immunity, but it was surely the case that if the government engaged in activities on your property, you would be compensated." Activities on your property, yes. That is a physical invasion, and has always been held to qualify as a taking. However, regulations concerning what an owner could do on his own property had never been held to count as a taking before the Constitution, or for nearly two centuries after it. Until the practices changed, and emanations had to be squeezed out of penumbras in order change the meaning of "taken for public use."

Now you're attempting to sqeeze in "wildlife habitat" as a "use" of a property, as in "the government is using your property as wildlife habitat." But under the venerable "sauce/goose/gander" doctrine, if it is a use for the government, than it is a use for a property owner, and he has not been deprived of the use of his property. In fact, there are a number of wildlife santuaries and camp sites that are operated commercial by private owners.

BTW, for those of you still determined to hate on me for my arguments on Kelo threads, land that is protected for wildlife habitat via the ESA is neither open to the public, nor in the ownership of the government.

[joe]

Perhaps Ron should put forward the argument that the passage of legislation in Congress counts as a nuisance use, which restricts the quiet enjoyment of other people's property.

It wouldn't be any more defensible as a constitutional doctrine, but it would be more consistent with his core argument, and damn funny to boot. 😉

[joe]

All I can say, quasibill, is that the application of the Takings Clause is dictated by the Constitution and the decisions made under it, not by your philosophy.

And under the Constitution and case law, there is indeed a difference between a physical invasion and a regulation.

[quasibill]

"All I can say, quasibill, is that the application of the Takings Clause is dictated by the Constitution and the decisions made under it, not by your philosophy."

Correct. And the powers of the federal government are supposed to be limited by it as well (see Article I), not by yours or FDR's philosophy.

"And under the Constitution and case law, there is indeed a difference between a physical invasion and a regulation."

Actually, as I noted by referencing Lucas, there is not when the regulation results in valueless land. Sorry.

[MP]

Having legal title to a piece of land is not the definition of ownership. How can something be mine if I have no rights to use it? Regulatory takings changes what it means to own something. The takings clause is not simply about the tranference of title, it is about the transference of control.

And I flat-out reject Ron's claim that "protecting animals"="public use".

[joe]

"Actually, as I noted by referencing Lucas, there is not when the regulation results in valueless land. Sorry."

Yes, you are correct - the penumbras and emanations determined that regulations that eliminate ALL use and ALL economic value are takings. Quite right. This still is still quite a ways away from the quasibill/Cavanaugh doctrine that eliminating ANY use or ANY economic value is a taking, but you did catch me in a misstatement.

Ditto to MP - leaving you with title to truly useless land, when it is the regulation that renders it useless, has been ruled to constitute a taking.

[Hakluyt]

joe,

The concept of a regulatory taking came about in the 19th century. I believe I've already pointed you to a number of cases on this matter.

[joe]

'And I flat-out reject Ron's claim that "protecting animals"="public use".'

Please, clarify - do you mean it is unconstitutional, and the government could not take land to create a wildlife preserve, or do you mean it is unwise?

If the former, where did you get that idea? What determines what is a public use?

[joe]

Actually, Hak, you asserted that claim, but never actually demonstrated it. You pointed to the Penn Coal case, which dealt with a dispute betweena proeprty owner and the owner of the subsurface rights, but you never related it to the government.

Could you expand on that?

[Hakluyt]

Ron,

Let's remember that zoning and the like morphed out of the elitist 'City Beautiful' movement. The point was to shove poor people off into denser enclaves so the middle class and the rich didn't have to look at them. "Reform" movements like this are inherently elitist in form.

[Hakluyt]

joe,

Penn Coal is intimately related to government regulation (namely the Kohler Act) and it was the Kohler Act which was at issue; otherwise the case wouldn't have involved a claimed taking. I mean come on dude, read the cases you pontificate on. 🙂

Prior to Penn Coal a number of cases before the S.C. concerned challenges to regulations based on the takings clause (see Mugler v. Kansas, Hadacheck v. Sebastion, Welch v. Swasey) and while the challengers were generally unsuccesful the Court did in general admit that a taking by regulation was possible.

[Ron Bailey]

joe:

Zoning generally raises the value of your neighbors' properties by restricting your activities (say a Chinese laundry) on your property that they believe lowers the value of their property. In other words the majority is/was willing to sacrifice the value of their neighbors' properties in order to increase the value of theirs. (As Hakluyt notes, often by shoving unsightly poor people off their land.) The same dynamic seems at work with the current ESA, environmentalists are willing to sacrifice the value of other people's properties to maximize their values (protecting species they value).

[joe]

Wow, a "polluting the well" and a non-sequitor in just over four lines. Well done.

[Hakluyt]

joe,

The earliest of these cases came about in the late 1870s; one of the reasons that was the case was due to the limited jurisdiction of the federal courts prior to the Judiciary Act of 1877 and the only recent passage of the 14th Amendment (the latter is especially critical since most regulation at the time came at the state level).

[MP]

If the former, where did you get that idea? What determines what is a public use?

Although I don't want to get deep into the Public Use debate again at this time, my stance is still use=use. As part of this, all land taken where the government retains control is inherently public use. They can take it for a bird sanctuary or to build a hot dog statue. The Fifth amendment doesn't care what the government does with it.

[joe]

"Penn Coal is intimately related to government regulation (namely the Kohler Act) and it was the Kohler Act which was at issue."

That thar's some mighty fine bobbing and weaving.

If I recall correctly, the Kohler Act declared that the owner of a piece of land was not the owner of the subsurface rights. Penn Coal owned the subsurface rights, and mined the coal beneath some poor shumck's house, causing it to sink and suffer damage. The homeowner then brought suit against the coal company for damaging his property, and the court ruled that Penn Coal was not liable for the damage. While there may be some intellectual heritage there, not even the coal company was held to have taken any land, nevermind the government. You're going to have to do better than that, if you want to claim that regulatory takings were brought into existence there.

[Hakluyt]

joe,

And yes I did demonstrate it. I've repeated exactly what I told you before. You're just wedded (for some reason) to the idea of regulatory takings being a post-WWII development that's all. I mean honestly, anyone remotely familiar with the post-14th Amendment jurisprudence of the Court realizes that challenging regulatory schemes on 5th Amendment grounds is almost as old as the Judiciary Act of 1877.

[joe]

Ron, "Zoning generally raises the value of your neighbors' properties by restricting your activities (say a Chinese laundry) on your property that they believe lowers the value of their property." Only if you keep your property in the same use.

Listed in ascending order of value:

1. House next to a laundromat -> 2. House next to another house -> 3. Office building next to a laundromat.

By forbidding commercial uses in a district, zoning limits your house's value to #2. Without zoning, you have the potential to develop your property to #3. IE, it lowers its potential for development - sort of like the ESA.

Where zoning "preserves property values" is in the aggregate - since the vast majority of homeowners will never develop the lots where they homes sit into Chinese laundromats, zoning which vastly increases the number of such houses that will be next to other houses, rather than next to businesses. Nonetheless, even these properties (#2s) will have less potential value than without the zoning (in which case they could be #3s).

People who support zoning are agreeing to have their own property values lowered somewhat, in exchange for other values, like quality of life.

[Dave W.]

Joe,

What do you think the law on regulatory "takings" should be? The originalist based position that reg takings aren't? The genetic diversity maximimizing based position that reg takings aren't? The "living document" based position that reg takings are?

[joe]

"And yes I did demonstrate it. I've repeated exactly what I told you before."

No, you didn't. Here, as before, you made reference to the case, but did not provide any explanation as to why it supported your point.

You can't just name a case, and claim that you've demonstrated a thought process.

So, get your hands dirty. I laid out the facts behind the case, and stated why they do not support your view. Would you care to try to refute them? Ou sont tu un poulet?

[Hakluyt]

joe,

That thar's some mighty fine bobbing and weaving.

There is no bobbing and weaving at all involved. Penn Coal concerned the ramifications of the Kohler Act. Without its passage (and the regulatory effect it had on a property right) there wouldn't have been a case before the Supreme Court.

Direct language from the case:

The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. ... We are in danger of forgetting that a strong public desire is not enough to warrant achieving the desire by a shorter cut than the constitutional mean way of paying for the change. 260 U.S. 393 (1922)

Maybe my problem is that I assume that since you claim to have read these cases you are actually telling the truth. I may have to re-think that assumption, since its fairly clear that you are not familiar with them at all. At best it seems that in some flunky planning textbook of yours the cases were briefly mentioned. To be blunt, EVERYONE who has ever read Penn Coal realizes that the quoted language above is the rule when it comes to regulatory takings. Now are you going to shut the fuck up and admit that you are wrong or what?

[joe]

Dave W., IMHO, Lucas is roughly correct on the law (if not the facts, but the whole case was a farce, factually). You can't leave someone without any value and without any use, and not compensate him somehow.

[Hakluyt]

joe,

BTW, that is some of the most famous language in Supreme Court jurisprudence. ANYONE remotely familiar with Penn Coal realizes that is one of the two "money quotes" in that opinion. I'm just assuming that you know what the fuck you are talking about, but in fact that assumption is apparently wrong if you're going to sit there and argue that some of the most famous lines in Supreme Court history don't actually exist. It didn't get through to me until just now that you've never actually read the opinion and that's the reason why you keep on making the boneheaded (and obviously erroneous) claim that you make. I guess its my fault for taking you seriously. The fact that I have to actually dig the quote up and spoonfeed it to you just demonstrates my true error.

[Dave W.]

Thanks. I can't wait to read Penn Coal -- it is hard to imagine the case based on the description in this thread.

[Hakluyt]

joe,

BTW, that is some of the most famous language in Supreme Court jurisprudence. ANYONE remotely familiar with Penn Coal realizes that is one of the two "money quotes" in that opinion. I'm just assuming that you know what the fuck you are talking about, but in fact that assumption is apparently wrong if you're going to sit there and argue that some of the most famous lines in Supreme Court history don't actually exist. It didn't get through to me until just now that you've never actually read the opinion and that's the reason why you keep on making the boneheaded (and obviously erroneous) claim that you make. I guess its my fault for taking you seriously. The fact that I have to actually dig the quote up and spoonfeed it to you just demonstrates my true error.

BTW, I will note that if you had actually read Lucas you would have noted that Justice Scalia mentions this language from Penn Coal as an "continuall cited maxim" or something to that effect. He then complains that Penn Coal doesn't provide very much guidance as to when a regulation does go 'too far" and thus create a taking.

[quasibill]

Well, another mistatement, Joe:

"This still is still quite a ways away from the quasibill/Cavanaugh doctrine that eliminating ANY use or ANY economic value is a taking,"

I have never (well, at least since law school :)) argued that eliminating any use or value is a taking - under the U.S. constitution. So I don't know where you dreamt that one up.

I do believe that such regulation by the federal government is not permitted under that same-self Constitution. Which, of course, is beside the point in Lucas, which involved a state regulation. So, to cut to the point, I actually think Lucas was wrongly decided as a matter of law! And, that there would be no need to develop a federal regulatory takings jurisprudence if the Constitution were actually obeyed.

[Hakluyt]

Dave W.,

Some of the other important statements in Penn Coal:

As applied to this case the statute is admitted to destroy previously existing property rights of property and contract. The question is whether the police power can be stretched so far.

One fact for consideration is determining such limites is the extent of the diminution. When it reaches a certain maginitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.

This is the case of a single private house. ... The damage is not common or public. ... On the other hand the extent of the taking is great.

[Hakluyt]

Dave W.,

I should add one more:

To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.

[Jason Ligon]

It seems like, under the terms of Penn Coal, there should have been some sort of evolved standard of what a taking is. Surely, joe would agree that if it is determined that your home must be bulldozed to protect some species or another, that would qualify as a taking.

Has there been a subsequent case that seeks to nail this down a bit?

[Hakluyt]

Jason Ligon,

Oh, there are a lot of cases (and joe will surely claim to have read some of them) out there. The issue remains fairly fact specific though. Lucas basically argues that if you render the property devoid "of all economically beneficial use then its a taking unless the proscribed use(s) weren't part of the title to start with.

[Hakluyt]

Jason Ligon,

"of all economically beneficial use"

[joe]

Oops. Hak has no doubt plinked me already (I haven't read through the comments since I last posted), but I completely misstated Penn Coal. It was not a case between two private parties; the "taking" in question was not the harm to the homeowner, but the interference with the coal comopany's right to mine; and the court ruled that a previous government action enjoining the right of the coal company to make use of its sub-surface "property" amounted to a taking of that property.

mea culpa mea culpa mea culpa.

[quasibill]

After Lucas, the Rhenny Court went on a bit of a tear on this subject. I can't remember the case names, but one dealt with a CA ordinance requiring a right of way or a view of the ocean, and another from OR that required a landowner to surrender a right-of-way for a bike path in order to get some zoning variances (something to do with a flood plain) (the Court held that such a requirement was a compensable taking).

The essential rule is Lucas, though. I remember thinking that the OR case followed some very twisted and torturous logic, but I haven't read it for a while, so my recollection isn't the best anymore.

[joe]

I can only state in my defense that a novel takings doctrine promulgated in the 1870s is no more originalist than one promulaged in the 1980s. In fact, a book about the case was titled "Justice Holmes Rewrites the Constitution."

[Hakluyt]

quasibull,

Nollan concerns the beach right of way and it was in 1987 five years before Lucas). The Oregon case is Dolan v. City of Tigard and it was two years after Lucas.

joe,

I can only state in my defense that a novel takings doctrine promulgated in the 1870s is no more originalist than one promulaged in the 1980s.

It wasn't novel. What made the Supreme Court first address regulatory challenges like this was the fact that they actually had jurisdiction over them. State courts had been addressing like challenges to regulatory schemes for far longer than that.

[Hakluyt]

joe,

...(I haven't read through the comments since I last posted)...

Right. 🙂

[quasibill]

I stand corrected. I knew that the names rhymed, but I forgot that Nollan was previous to Lucas. I'm curious to re-read Dolan now, because I want to remember the reasoning used. I remember thinking that it was somewhat convoluted.

[Hakluyt]

quasibill,

Yes, the fact situation is different from Lucas. They are more of an issue of a physical invasion of property. I believe California ended up paying the Nollans (and others) for the access path they required. In turn a lot of the homeowners have tried to hide the paths, block them, etc. Some have also hired companies to bulldoze up areas of the beach so that it can't be used by sun bathers (creating huge sand berms along where their property line meets the mean high tide line).

[joe]

Or, the 1920s, even.

[joe]

To bring this aaaaallllllllll the way back to something like my original point, watching chest-pounding "orignialists" like Hakluyt and Cananaugh hitch their wagons to a radical decision like Penn Coal is a hoot.

Hak, "Right. :)"

No, seriously, I jumped in the Civic at lunch, went home, and looked the case up in my Planning Law textbook.

[quasibill]

Heh, just noted this:

"quasibull," - Hak, at 2:33p.m.

I guess i'm just partially full of it today 🙂

[Hakluyt]

joe,

I don't take anything you say on the matter seriously after your antics. You've already demonstrated that you've never, ever read these cases, and that your knowledge of takings jurisprudence comes from a couple of paragraphs in a planning textbook you read.

[Hakluyt]

quasibill,

I assure you that was a type. The only person full of bullshit here is joe.

[Hakluyt]

...typo...

[joe]

quasibill, "I do believe that such regulation by the federal government is not permitted under that same-self Constitution. Which, of course, is beside the point in Lucas, which involved a state regulation. So, to cut to the point, I actually think Lucas was wrongly decided as a matter of law!" Are you saying that you don't believe the Fifth Amendment's Takings Clause applies to the states? That isn't what you were saying in the Kelo threads, if I recall correctly.

The peaceful enjoyment of one's property, and the opportunity to make economically productive use of it, are civil rights protected by the Constitution, and under the 14th Amendment, the states are bound to respect them just as the feds are. That doesn't mean you are allowed to do anything you want, obviously, but you have the right, under the federal Constitution, to do something with your land, and state and local governments have to respect that right.

Bet nobody saw THAT coming. What with me being a communist and all.

[joe]

"I don't take anything you say on the matter seriously after your antics."

Awwwwwwwwwww.....That hurts. Does this mean I won't get to enjoy your attention anymore? It's going to take a while for me to recover from that...

...wait for it...

...ok, I can go on with my life now.

[quasibill]

"quasibill,

I assure you that was a type. The only person full of bullshit here is joe. "

I assumed as much when I looked at the keyboard. Having never seen that particular typo before though (despite using this moniker for a long time on many different boards, and having gotten in some very heated debates), I found it hilarious. I guess it's one of those "you had to be there" kind of things.

"...typo..."

Hahaha. I bet you didn't even do that on purpose 🙂

[David T]

This whole business of the post-Kelo backlash to me is just another demonsstration of why conservatives (and on this issue, libertarians) should favor a liberal Supreme Court and why liberals should oppose one: Every liberal "victory" in the Court turns into a conservative *political* victory...

[Hakluyt]

joe,

I have to ask, do you even know what the term "originalist" means? Because I'm not an originalist and never have been.

[Hakluyt]

David T.,

So far its unclear what the Kelo will mean.

[joe]

Sure you aren't. 🙂

Yes, I do.

And you certainly argued like one on the Kelo threads.

[MP]

Hakluyt,

Originalist is truly a vague term. However, out of curiosity, where between the Cass Sunstein "ends justify the means" and Randy Barnett "original meaning" camp do you find yourself?

[Hakluyt]

Folks who don't know any better tend to glob together originalism (meaning original intent generally), strict constructionism, original meaning, etc., when in fact these are very different jurisprudential doctrines.

[Hakluyt]

joe,

No I didn't. See my globbing statement. Now let us in the know talk about this subject and you go research it a bit. 🙂

MP,

Originalist is truly a vague term.

Sure, that's why ignorant people like joe throw it about without realizing it makes them look like fools in the process.

...Randy Barnett "original meaning" camp do you find yourself?

The funny thing is I've never read his book but I do fall in with the "original meaning" crowd more than any other. Of course Scalia has been articulating an "original meaning" jurisprudence long before Barnett wrote that book (not that he has always met it) (he had some articles on his way of thinking back in the 1980s that were especially useful - or rather, they were speeches turned into articles). Anyway, I obviously can't speak to any specific claims in the book itself.

[Hakluyt]

joe,

No I didn't. See my globbing statement. Now let us in the know talk about this subject and you go research it a bit. 🙂

MP,

Originalist is truly a vague term.

Sure, that's why ignorant people like joe throw it about without realizing it makes them look like fools in the process.

...Randy Barnett "original meaning" camp do you find yourself?

The funny thing is I've never read his book but I do fall in with the "original meaning" crowd more than any other. Of course Scalia has been articulating an "original meaning" jurisprudence long before Barnett wrote that book (not that he has always met it) (he had some articles on his way of thinking back in the 1980s that were especially useful - or rather, they were speeches turned into articles). Anyway, I obviously can't speak to any specific claims in the book itself.

[Hakluyt]

joe,

No I didn't. See my globbing statement. Now let us in the know talk about this subject and you go research it a bit. 🙂

MP,

Originalist is truly a vague term.

Sure, that's why ignorant people like joe throw it about without realizing it makes them look like fools in the process.

...Randy Barnett "original meaning" camp do you find yourself?

The funny thing is I've never read his book but I do fall in with the "original meaning" crowd more than any other. Of course Scalia has been articulating an "original meaning" jurisprudence long before Barnett wrote that book (not that he has always met it) (he had some articles on his way of thinking back in the 1980s that were especially useful - or rather, they were speeches turned into articles). Anyway, I obviously can't speak to any specific claims in the book itself.

[Hakluyt]

joe,

No I didn't. See my globbing statement. Now let us in the know talk about this subject and you go research it a bit. 🙂

MP,

Originalist is truly a vague term.

Sure, that's why ignorant people like joe throw it about without realizing it makes them look like fools in the process.

...Randy Barnett "original meaning" camp do you find yourself?

The funny thing is I've never read his book but I do fall in with the "original meaning" crowd more than any other. Of course Scalia has been articulating an "original meaning" jurisprudence long before Barnett wrote that book (not that he has always met it) (he had some articles on his way of thinking back in the 1980s that were especially useful - or rather, they were speeches turned into articles). Anyway, I obviously can't speak to any specific claims in the book itself.

[MP]

let me move back to NH and live with people who at least share some of my values

I'm skeptical about that still being the case. Between the Claremont case and the ongoing invasion from MA, the state appears to have changed a lot since I moved away 10 years ago. I'm still not clear why Craig Benson lost that election.

[Hakluyt]

Many apologies for the quadruple post.

[Hakluyt]

MP,

There was some corruption associated with his campaign. I also think that Kerry had some coatails in NH as well.

[joe]

On New Hampshire - the conventional wisdom is that the Massachusetts transplants are turning the state blue. However, this is completely wrong. The suburban, southern tier counties that are seeing the greatest population growth - the ones that were traditionally the most Democratic - actually voted for Bush in 2004. It was the poorer, more rural areas in the center and northern tier of the state that went for Kerry in a big way, and tipped the state his way.

It seems that the Massachusetts transplants tend to be Republican refugees from "The People's Republic," and that the natives are realigning towards the Dems.

[Shelby]

joe:

1) Take comfort, eventually a Democratic administration will get to interpret the new rule and we can go from under-protection by administrative fiat to over-protection.

2) For you originalists out there, the answer was clearly NO at the time the Constitution was written. What pre-1787 administrative "takings" did you have in mind with this?

3) re: joe's rule of journamalism: Only one of each? So optimistic! go for "at least three".

4) If I were selling a house, I'm pretty sure I'd get more for it if it were next to another house than if it were next to a laundromat. Thus, my property value has been raised by preventing the operation of a laundromat next door.

Whaddaya mean, this game's already over? I've got my cleats on and everything...

[Bob]

>This bill seems to go well beyond that, and would
>compensate owners even if their land, under the
>ESA, still has plenty of economic potential and can
>be enjoyed by its owner.

Quite frankly, it's remarkably offensive for an environmentalist to proclaim that it's ok to destroy the value of somebody's property and not compensate them for that loss of value because it "still has plenty of economic value". It's no different than, say, downzoning from commercial office to single-family. After that it may not have *any* economic value to me, since the new value may be less than I originally paid.

[Bob]

>If you want to clear away penumbras and emanations,
>then we're going back to the 1790s, and there is
>absolutely no compensation required for reductions
>in value from regulation.

That's not true, because in the 1790s it was understood that the federal government couldn't regulate land use.

[joe]

"in the 1790s it was understood that the federal government couldn't regulate land use."

Let's accept for a moment that this is true. Doesn't that indicate that the Constitution is completely silent on the question of whether land use regulations can constitute takings?

When the Constitution is silent on an issue, and later on, the courts find a Constitutional doctrine to apply to a novel situation, the term "living Constitution" is often applied to the philosophy that allows them to do so - that is, the philosophy that states they should consider the principles underlying the black letter law (such as, the cost of advancing broad public benefits should not fall on individual property owners, but be borne by society as a whole), and apply them to the novel circumstances.

[Bob]

>Doesn't that indicate that the Constitution is completely silent
>on the question of whether land use regulations can constitute takings?

If the government can't regulate land, there's no reason to consider the question whether regulating it constitutes a taking.

If you want to regulate land, the fair way is to buy out the existing owners, downzone, then sell to new owners. Any loss on this transaction is the cost of the taking.

What offends me most about this topic is the courts ruling that anything less than total destruction of the land's value needn't be compensated. It led, predictably, to IMO abusive land regulation practices (just look at what the California Costal Commission does for a great example), and incredibly arrogant planners who do whatever they want because neither they nor their agency bears the cost. Reduce somebody's land value by half, possibly (or even likely) to less than their acquisition cost, never mind the legal and opportunity cost? So what, not our problem!

[joe]

"If the government can't regulate land, there's no reason to consider the question whether regulating it constitutes a taking."

Exactly. The Constitution is silen. The courts in the immediate post-Constitutional period are silent. Ergo, there is no way to appeal to an "orginalist," "orginal meaning," or "strict construction" argument in support of the doctrine. The only way it can come about is through the methods of the "living Constitution" thinkers. That's all I'm saying.

"If you want to regulate land, the fair way is to buy out the existing owners, downzone, then sell to new owners." I'm not sure this is the only fair way, but in general, the idea that a regulatory taking can only occur when you change the rules on an owner is a sound one. If you pay $10,000 for 1000 acres of wetlands, because regulations have rendered it unbuildable, you shouldn't get to claim that the value of the land as house lots has been taken from you.

As far as all loss of value from regulations being a taking - would that include laws against prostitution, which lower the market value of a brothel?