Supreme Court dishes property owners a Fifth Amendment victory

By Bonner Cohen, Ph. D. @ CFACT

In a decision that sent chills down the spines of environmental groups and raised the spirits of property rights advocates, the U.S. Supreme Court June 21 removed a significant legal barrier that, for decades, had effectively barred aggrieved landowners from challenging local ordinances in federal court.

The court’s 5-4 ruling restores property rights to the full constitutional status the Framers envisioned when they included the Fifth Amendment’s Taking Clause in the Bill of Rights, opening federal courts to property owners seeking “just compensation” for the taking of their property by government.

Property owners’ access to federal courts had been effectively blocked since 1985, when the Supreme Court, in what is known as its Williamson precedent, ruled that landowners must first bring takings claims against local governments to state courts before proceeding to federal court. Williamson is short for Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

Catch 22

For property owners, Williamson created a Catch-22 situation, because, under a subsequent Supreme Court ruling, a federal court generally must defer to a state court’s resolution of a claim for just compensation. Property owners caught in this Catch-22 were cast into a neverland of endless, bank-account-draining litigation in state courts, with little hope of ever receiving their day in court at the federal level.

“The takings plaintiff thus finds himself in a Catch-22. He cannot go to the federal court without going to the state court first; but if he goes to the state court and loses, his claim will be barred in federal court,” Chief Justice John Roberts wrote. “The federal claim dies aborning.”

In reversing the 34-year-old Williamson precedent, the Supreme Court will allow takings plaintiffs to bring their cases to federal court, where, if successful, they will receive the just compensation guaranteed them under the Constitution.

“We now conclude that the state-litigation requirement imposes an unjustifiable burden of takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled,” Roberts said, speaking for the majority.

The case, Knick v. Township of Scott, that led to the reversal of Williamson involves Rose Mary Knick, owner of a 90-acre property in eastern Pennsylvania on which a cemetery is situated. Knick challenged an ordinance by Scott Township requiring that cemeteries “be kept open and accessible to the general public during daylight hours.” The ordinance, she and her attorney argued, constituted a taking of her property. Knick filed a takings claim in federal court, but the court, citing Williamson, said she could not bring the suit without going through state proceeding first. She was stuck in the Catch-22.

“This decision is a very long time coming for Rose and other property owners who have had federal court doors slammed shut in their face whenever they seek compensation for a government taking of their private property,” Pacific Legal Foundation (PLF) attorney Dave Breemer, who represented Knick in the case, said in a statement. “The Court’s decision sends a message that constitutionally-guaranteed property rights deserve federal protection just like other rights.”

Fracking Bans and Mineral Rights

Alston & Bird attorney Paul Beard believes the ruling will have a far-reaching effect on energy and environmental policy, especially at the local level.

“In the energy-regulation space, we can expect more – and more successful – challenges to statutes and ordinances that, to take examples from recent trends, destroy or significantly damage oil, gas, and mineral rights. Think fracking bans,” he told E&E News (June 21) in an email.

In fact, the ruling may deter policymakers from adopting such ordinances for fear of triggering litigation, he added.

The United States is unique in its protection of mineral rights. Landowners not only have surface rights – such as the right to grow crops on the surface of their land – but also mineral rights – such as the right to access oil or natural gas located beneath their property. Mineral rights enabled the fracking boom that, over the past decade, propelled the U.S. to the world’s top producer of oil and natural gas. Owners of property situated atop shale formations entered into voluntary agreements with oil and gas companies that allowed the latter to extract the hydrocarbons while generously compensating the former. The arrangement has completely upended global energy markets.
In a bid to derail America’s global energy ascendency, environmentalists and their political allies have enacted local fracking bans, and New York Gov. Andrew Cuomo has decreed a statewide fracking ban.

The Supreme Court’s reassertion of the Takings Clause raises, as attorney Paul Beard suggests, intriguing questions about the constitutionality of bans that deny landowners their mineral rights.

Author

• Bonner Cohen, Ph. D.
  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

It Matters How You Stand

by Tom DeWeese July 11, 2018 Featured, Property Rights @ The American Policy Center

Justice has finally been achieved as the federal government’s war against western ranchers and property owners has taken a second major hit.

First, Cliven Bundy and his sons, Ryan, Ammon, Dave and Mel, were released in January, 2018, after three trials that never found them guilty of a crime, yet they spent close to two years behind federal bars, while being physically tortured and abused by cheating and lying Bureau of Land Management (BLM) thugs. As they were forced into solitary confinement, subjected to daily body searches, and other physical abuses, they were labeled by the government and mainstream media to be nothing more than paranoid right-wing loons.

Finally, a judge found that it was the BLM which was dangerous, guilty of perpetrating violence and spreading lies in an attempt to take control of the Bundy Nevada land that had been in the family’s possession since the 1880s. The BLM started the range war against the Bundys, claiming that Bundy cattle were a danger to the desert tortoise. And so, as the BLM openly bragged about roughing up Dave Bundy, grinding his face into the ground, they confiscated the cattle from land on which the Bundys had legal grazing rights dating back one hundred years.

Meanwhile, in Southwest Oregon, Dwight and Steven Hammond, also multi-generation cattle ranchers, were imprisoned for allowing a routine controlled-burn fire to leak onto a small portion of neighboring public grazing land. It’s a standard practice by ranchers to use the burns to keep down weeds and debris that would feed large forest fires. It also helps keep burnables away from ranch buildings. In short, its just good land management. The forest service does it too. In fact, the accidental spread of the  Hammond fire onto federal land surely helped improve government land.

The federal government worked to throw the book at the Hammonds, charging them with intentionally and maliciously setting fires on public lands. The Department of Justice actually charged Steven Hammond with lighting the fire to cover an illegal deer hunt on land that was managed by the BLM. It filed a civil suit that cost the Hammonds over $400,000. Meanwhile the government vigorously worked to prosecute the Hammonds to put them behind bars.

Yet the Jury acquitted them on most of the charges and U.S. District Judge Michael Hogan, considering the fact that the Hammonds were upstanding citizens,  decided that the usual minimum sentence of five years was too harsh for the supposed crime. Thus, Dwight Hammond received only three months and his son Steven was sentenced to a year and a day. They served that time and returned home to their ranch in Diamond, Oregon.

The Obama Justice Department actually accused the Hammonds of terrorism and demanded more time be served, so prosecutors filed an appeal to overturn Judge Hogan’s lighter sentence. As a result the Hammonds were forced back into jail to complete the full five years.

This injustice by the federal judicial system is what forced other ranchers, including the Bundys, to travel to Burns, Oregon in January 2016 to occupy the Malheur National Wildlife Refuge. The point was to expose the government’s war on ranchers, of which the Hammonds were the latest victims of this massive government overreach.

Once again, the government reacted with massive firepower. This time, as several of the protestors were on their way to a public meeting to explain their purpose and try to work out some sort of solution, federal and state agents arrested Ammon Bundy in a road block. Meanwhile, officials forced the car carrying rancher and protest leader LaVoy Finicum, off the road, into a trap. As LaVoy exited the car with his hands up in an attempt to protect the others still in the car, state police and FBI officers opened fire and killed LaVoy Finicum as they claimed he was going for a gun. Video has proven he was not. His wife, Jannette Finicum has now filed a wrongful death lawsuit.

For decades, ranchers across the American West have endured such intimidation and lawlessness by the federal government. Finally, some of their strong, independent neighbors said enough is enough. All they desire is to live in peace as good stewards of the land. And so, against all odds, they took a stand against the powerful government forces. Frankly, the outcome seemed hopeless. How does an individual gain justice in a rigged system that controls the court rooms and the media?

But a new battle cry is being heard as more and more Americans are beginning to see through the government smokescreen of intimidation and persecution. The Bundys and the Hammonds have led a renewed battle for the very issue that built this nation’s freedom and prosperity –the right to own and control private property.

On Tuesday, July 10, 2018, President Donald Trump fully pardoned Dwight and Steven Hammond and they too are headed home. They and the Bundys endured oppression from an out of control American government unlike anything we could have imagined existed in our nation. They fought an unwavering battle for freedom. And they have won. Now the American public must honor their sacrifice by demanding a full investigation into the lawless behavior of the BLM and U.S. Forest Service. American ranchers must never again be subjected to the tyranny endured by the Bundys and the Hammonds. As LaVoy Finicum once said, “It matters how you stand!”