[Congressional Record Volume 141, Number 65 (Friday, April 7, 1995)]
[Extensions of Remarks]
[Pages E823-E825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         ``TAKING'' IT TOO FAR

                                 ______


                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                         Thursday, April 6, 1995
  Mr. MILLER of California. Mr. Speaker, and fellow Members, I bring to 
your attention the attached article by Charles McCoy, from the April 4, 
1995, edition of the Wall Street Journal.
  Mr. McCoy presents an even-handed report of the congressional debate 
on the issue of private property rights and the ``takings'' issue, 
which, after passing the House, is now underway in the Senate. As Mr. 
McCoy notes, the House bill would require the Government to pay 
landowners full compensation when certain environmental protection 
actions trim the value of any portion of their land by 20 percent or 
more. In the Senate, majority leader Bob Dole has introduced a measure 
(S. 605) that would lift the threshold to 33 percent and would apply to 
all Federal actions.
  Proponents contend that the Republican bills aim merely to put common 
sense back in Government's attitude about private property. Perhaps 
these advocates can explain the logic behind these examples of 
litigation currently being fought under the guise of private property 
rights:
  Summitville Mine. The Canadian company that operated Summitville Mine 
created a Superfund site that will cost the taxpayers about $120 
million to clean up, filed bankruptcy and left the country. Now the 
owners of the mine site are suing the Governor of Colorado on the 
grounds that because the State permitted the mine, that gave the owners 
significant profit but also polluted their property, the value of the 
land was decreased due to regulatory action.
  California Central Valley [CVP]: Big agricultural corporations now 
receive huge amounts of public water at subsidized rates to pour on 
their corps. Under the CVP legislation enacted in 1992, Federal and 
State regulators intend to divert some of that water to save and 
restore salmon runs. Now, the agriculture bigwigs are claiming that if 
these plans go through, and the takings legislation is enacted, they 
will claim reimbursement for any diversion of their subsidized water 
allotments--at market rates--not the subsidized rates.
  The argument for ``takings'' legislation is not simply about that 
bedrock of American values: protection of private property. 
Unfortunately for those citizens who honestly believe in the rightness 
of their cause, it is more a ruse being played on the American people 
by the proposal's strongest supporters: industries such as mining, 
ranching, timber, oil and gas, and agriculture. These corporate players 
and their lawyers know that if enacted, this bill will not bring common 
sense to governmental actions, but will flagrantly inflate the number 
of lawsuits crowding our courts and cause governmental gridlock at all 
levels.
  I urge you to take the time to read Mr. McCoy's article.
              [From the Wall Street Journal, Apr. 4, 1995]
  The Push To Expand Property Rights Stirs Both Hopes and Fears--Some 
  California Farmers See Windfall in GOP Bills; Officials Fret About 
                                 Costs


                     do grazing elk ``take'' grass?

                           (By Charles McCoy)

       The new Republican-controlled Congress is on its way to 
     passing the biggest expansion of property rights in U.S. 
     history. In California, this could very well radically drive 
     up the cost of saving salmon--and add to the tide of 
     litigation those rescue efforts have already spawned.
       Indeed, the Republican proposals, depending on their final 
     form, promise a procession of policy zigzags and lawsuits at 
     all levels of government, both critics and even some 
     proponents agree.


                           murky consequences

       Consider the salmon example: Big agricultural corporations 
     in California's arid Central Valley now get huge amounts of 
     public water at subsidized rates to pour on crops. But some 
     of the state's historic salmon streams are drying up; under 
     previous congressional mandates, federal and state regulators 
     want to divert some of this water to restore salmon runs.
       [[Page E824]] But, under ``takings'' legislation passed by 
     the House last month, corporate farmers would have to be 
     compensated for any diversion of their allotments. In fact, 
     under some circumstances, the corporate farmers could claim 
     reimbursement at market rates--meaning reimbursement out of 
     the federal treasury at rates 10 times the subsidized rate 
     they now pay. ``We have a right to that water, and if the 
     government wants it for fish, they have to pay us,'' says 
     Jason Peltier, a top California farm lobbyist.
       Until now, federal courts and the U.S. Supreme Court have, 
     in a number of decisions, rejected this view. But the breadth 
     and wording of the new Republican takings proposals would 
     unquestionably give Central Valley farmers a potent new 
     weapon; they are already preparing lawsuits in anticipation 
     of passage of a generous takings law.


                         blessing or disaster?

       Environmentalists are naturally alarmed. Says Hal Candee, 
     an environmental lawyer with the Nature Resources Defense 
     Council: ``This is insane--the public is already subsidizing 
     irrigation that is devastating the environment, and now we 
     have to pay even more to make it stop?''
       Moreover, the takings movement is being watched with 
     growing concern by numerous state and local governments, 
     which fear a huge hit on the public treasury--or a sharp 
     decline in their ability to enforce what they consider 
     reasonable environmental, planning and other regulations. In 
     Riverdale, Calif., a fast-growing Southern California city 
     bedeviled by numerous endangered species, traffic and open-
     space conflicts, city planner Stephen Whyld calls the new 
     takings proposals ``prescriptions for total gridlock.''
       Nonsense, say proponents, who argue that such legislation 
     is necessary to rein in overweening regulators. ``It's 
     obvious that bureaucracies from the federal level down to the 
     local school board have come to believe that the Fifth 
     Amendment just doesn't apply to them,'' says R.S. Radford, a 
     property-law expert at the Pacific Legal Foundation, a 
     conservative legal think tank that has handled many takings 
     lawsuits on behalf of landowners. The takings movement, he 
     says, confronts ``terrible abuses by government against 
     individuals.'' Central Valley farmers, for example, have long 
     painted efforts to save salmon as an example of government 
     ``worrying more about fish than people.''
       What is certain is that the takings campaign, both in 
     Congress and in a number of states, seeks to significantly 
     expand interpretation of the Constitution's so-called takings 
     clause. This is a snippet of the Fifth Amendment that holds 
     that government ``shall not take private property for public 
     use without just compensation.''


                           keeping a promise

       The recent House proposal also fulfills a promise in the 
     ``Contract With America'' and is strongly supported by large 
     industries such as mining, ranching, oil and agriculture. It 
     requires the government to pay landowners full compensation 
     when certain government actions to protect the environment 
     trim the value of any portion of their property by 20% or 
     more. The Senate is considering a proposal championed by 
     presidential hopeful and Senate Majority Leader Robert Dole 
     that lifts that threshold to 33%--but it would apply to all 
     federal regulations, not just environmental rules.
       Whatever its final form, such a bill, if passed, would be a 
     populist rallying point that may be difficult for President 
     Clinton to veto. Even if he does, the movement has plenty of 
     steam at a state and local level. Colorado, Oregon, Texas and 
     other states are considering their own expanded takings 
     bills.
       In fact, some private-property interests have already begun 
     to push novel legal theories under the current state of 
     takings law--theories that they clearly hope will be 
     enshrined under the more expansive Republican bills. Wayne 
     Hage, a Nevada rancher and a leader of the West's private-
     property movement, alleges in a lawsuit pending in the 
     federal court of appeals in Washington that the government 
     owes him compensation because fish and game agencies don't 
     prevent elk herds from drinking from his streams and munching 
     range on his 7,000-acre spread. That is a taking of his water 
     and grass, he contends.
       Mr. Hage also is credited with devising another now-popular 
     theory in the West: that ranchers have what amounts to a 
     private-property right to graze on public range land. Thus, 
     Mr. Hage and several other Western ranchers have sued the 
     U.S. Forest Service and the Bureau of Land Management, 
     claiming that they suffered takings when the agencies tried 
     to restrict grazing on public range, which in many areas has 
     been scalped by years of overgrazing.
       In Mr. Hage's case, the Forest Service confiscated some of 
     his cows because he repeatedly defied the agency's orders to 
     stop grazing on public land that federal range experts 
     considered ``trampled, compacted, gullied.''
       For damage from regulators and elk, Mr. Hage seeks 
     compensation of at least $28.4 million.


                         mountains of concerns

       Then there is the case of the Summitville Mine in south-
     central Colorado. Mining practices there have created a heap 
     of cyanide-laced mine wastes; the Superfund cleanup is 
     expected to cost taxpayers at least $120 million. The 
     Canadian company that operated the mine for its owners has 
     declared bankruptcy and left the country.
       Now, the mine owners, Aztec Minerals Corp., Gray Eagle 
     Mining Corp. and South Mountain Minerals Corp., have sued 
     Colorado's governor and main environmental agencies. Their 
     claim: Because regulators did as the companies wished and 
     permitted mining that earned them substantial profits but 
     polluted their property, their land has been devalued by 
     regulatory action--a taking under the Colorado constitution. 
     The mine owners also say their property values have been hurt 
     because regulators' emergency cleanup of Summitville, 
     undertaken to prevent further poisoning of their land, has 
     closed down mining, possibly for good.
       ``Let me get this straight: It's a taking when you're 
     allowed to mine, and a taking when you're prevented from 
     mining?'' scoffs Roger Flynn, an environmental attorney with 
     the Western Mining Action Project.
       Just so, says Tim Gablehouse, the mine owners' attorney: 
     ``Government action and inaction have damaged the value of 
     private property, and we have a constitutional right to 
     compensation.''


                            Intangible Costs

       Colorado is one of many states considering local takings 
     legislation modeled on the new congressional proposals, and 
     indeed, it is at the state and local level, where planning 
     commissions make numerous decisions on a daily basis, that 
     such measures could really open the floodgates. For example, 
     local governments often deny permission for landowners to 
     subdivide lots or undertake high-density development, on the 
     theory that approval would aggravate congestion or traffic. 
     Yet such decisions often diminish land values by as much as 
     one-third.
       Jennifer Moulton, Denver's planning director, predicts that 
     takings legislation pending in the Colorado state legislature 
     would mean ``a nightmare of dueling appraisers and dueling 
     lawyers.'' The Colorado proposal says that any diminution of 
     property values whatsoever requires compensation but leaves 
     it to appraisers to determine how much. ``Property owners 
     will have their appraisers, and we'll have ours, and we'll 
     all go around and around and around,'' Ms. Moulton says.


                             Texas Notions

       Other recent federal takings claims have featured coal 
     companies alleging that they must be compensated because 
     federal law requires them to pay money into a fund for miners 
     stricken with black lung. And a company owned by Texas oil 
     millionaire Clayton Williams has sued Wyoming wildlife 
     agencies over limits and licensing requirements for hunting 
     deer, elk and antelope. Mr. Williams's theory: He owns the 
     wildlife on his 90,000-acre Wyoming hideaway, and state 
     hunting restrictions are a taking of his private wildlife for 
     which he must be compensated. Mr. Williams lost the first 
     legal round in federal court, but he has appealed.
       Not all the recent federal cases deal with environmental 
     matters. International House of Pancakes Inc. has claimed 
     that modifications to restaurants required by a 1990 
     handicap-access law are a taking for which it should be paid.
       IHOP made the claim in defense of a lawsuit brought by 
     Theodore Pinnock, a San Diego attorney with cerebral palsy 
     who sued after he allegedly couldn't get his wheelchair 
     through a narrow restroom door and had to crawl into the 
     men's room. Last summer, the U.S. Supreme Court refused to 
     review a lower court decision against IHOP's takings claim. 
     But many lawyers say IHOP probably would have prevailed under 
     some of the new takings theories being pushed in Congress.
       It is that kind of scenario that concerns people like 
     Jerold S. Kayden, a Harvard University property-law scholar. 
     In his view, the Republican takings bills would ``vastly 
     expand'' the opportunities for claiming compensable takings--
     and would likely trigger a blizzard of such claims that will 
     force a cash-strapped government to choose between enforcing 
     regulations in the public interest or paying huge sums to 
     landowners.
       More fundamentally, the new takings proposals mark a 
     drastic departure from how courts and policy makers have 
     historically interpreted the Fifth Amendment's taking clause. 
     In general, courts have allowed the government significant 
     latitude to make regulations impinging upon private property 
     in the interest of protecting public health and safety, 
     building highways, limiting growth and the like, particularly 
     when the regulation didn't wipe out all economic value of the 
     private land.


                             Narrow Rulings

       The Supreme Court twice in recent terms has taken up major 
     takings claims; both times the court ruled narrowly in favor 
     of landowners, strengthening private-property rights without 
     fundamentally altering past property-law concepts. The court 
     is currently hearing another potential landmark private-
     property case involving how far regulators can go to enforce 
     the federal Endangered Species Act on private land.
       Mr. Kayden also posits another question: If property owners 
     are going to be paid by the public when a regulation 
     decreases property values, he asks, why shouldn't they have 
     to repay the public when regulatory action--flood control, 
     for example--enhances property values?
       Takings proponents, however, contend that the Republican 
     bills aim merely to put common sense back in government's 
     attitude about private property, and they have their own list 
     of abuses that they believe shows the need for a radical 
     change in the takings law. There is the case of a Washington 
     man who was barred from cutting down a few 
     [[Page E825]] trees on his land because a spotted-owl nest 
     had been discovered some five miles away. There is the South 
     Carolina developer whose $1 million investment in residential 
     property was totally wiped out by subsequent erosion-control 
     rules, even though his lots were a football-field distance 
     away from the beach. There are the various landowners who 
     have been thrown in jail for dumping clean sand on slivers of 
     their property that were classified as wetlands; in some 
     cases, the ``wetlands'' had been dry for decades.
       Backers also accuse their critics of fear-mongering when 
     they suggest the bills invite landowners to raid the 
     environment and the national treasury. Critics ``have 
     propounded the myth that private property and environmental 
     protection are inconsistent,'' says Rep. Lamar Smith, a Texas 
     Republican and a House leader on property rights.
       The House takings proposal, for example, wouldn't apply to 
     any activity that runs afoul of state nuisance laws; that, he 
     and other supporters say, will prevent landowners from 
     ``getting paid not to pollute.''
     

                          ____________________