Environmental Grantmakers Association
Strategy to Take Private Property
Through Regulatory Takings

by Erich Veyhl, Land Rights Letter, March 1993.

Conference participants were greatly concerned with how to get around legal protections of property rights – the “takings” issue.

They showed no understanding of what property rights are or mean. But just as classical American liberalism (meaning Jefferson, not Clinton) recognizes that private property rights are a necessary foundation for both our civil liberties and the best protection of our environment, preservationists recognize that property rights are an impediment to the sweeping, intrusive bureaucratic controls they need to impose their agenda on the nation. Property rights to them are a negative – no more than a barrier to regulation.

Callahan confirmed environmentalism's place in the debate between authoritarianism and freedom (although she seemed to confuse the religious “fundamentalist right” with the broad, centuries-old American principles – stemming from the Enlightenment – of freedom, individualism and man's happi- ness.) “They call us communists, OK?,” she said, “So I think that you can theoretically hypothesize that this movement makes a great next step for the fundamentalist right wing because it's about the same issues. It's about individualism versus the Federal government, it's Federalism – right to regulate. A lot of the same issues here.”

In addition to the preservationists' drive to replace private ownership through Federal acquisition, they have embarked on a massive regulatory agenda for property use prohibitions that is blocked, at least in part, by Fifth Amendment requirements for due process and compensation to landowners for property taken by the government. They are worried about – and savagely fighting – legislative initiatives intended to protect private property rights (although they consider legislation to be “reversible”) and are intervening in judicial “takings” cases (which they consider to be “irreversible,” at least for a long time.)

And they are keeping track: “So far twenty eight states have considered takings legislation in their state legislatures,” reported Callahan, “Just this year three states passed conservative takings bills: Delaware, Arizona, and Washington State. Two hundred fifty counties around the country, that we have been able to find, have considered takings bill sat the county level and over fifty counties thus far have passed.”

Groping for a strategy to bypass compensating property owners for rights taken by regulatory inverse condemnation, Callahan said there have been proposals that “we should be pushing something called 'givings' where intact environmental regulations protect the public interest, and therefore we should be using those arguments in Supreme Court cases and other cases, [but] it hasn't been developed alot yet in the briefs that have been filed, to the best of my knowledge,”

The National Trust for Historic Preservation, a Federally-funded quasipublic agency, reported that the takings issue is a “big problem” and that it is taking the lead nationally by becoming a “secretariat of sorts for a group that includes groups like National Audubon, Environmental Defense Fund, National Wildlife Federation and others.”

The group, consisting of representatives from environmentalist organizations, the planning establishment, and land trusts, is “a broad alliance to try to counteract the problem of the wise use movement and their activities.” It is presently “most interested in these takings issues as they apply to potentially eliminating their ability to promote regulation.”

It includes a group of lawyers tracking and interpreting court cases on takings and a second group inventorying “all the activities on legislative taking kinds of bills in state legislatures and the county [and] local government level.”

Despite the Trust's tax exempt status and public funding, it plans to coordinate state lobbying through “ongoing monitoring” and the “capacity to get the word out to... counteract it [through an] action network for alerting people to where problems are and what they can do about it.” A third group is working on “defining message.”

One participant opined that “this takings issue is kind of the ideological soft underbelly for the wise use movement in a way if we use it properly in that it does – it doesn't speak to the interests and the needs of the workers who are losing their jobs in whatever fashion. It speaks to the interest and needs and wealth of the owners and I think if we use it properly, as opposed to just going and litigating it quietly in a corner somewhere, if we use it properly and publicize it properly and talk about it in those terms, that you start to – I think that the fundamental problem for the wise use folks is that there is no real convergence of interest between, if I might be blunt, the ruling class and the working class – just in case you were wondering where I came from.” No one objected to where she “came from.”

But the National Trust replied, “It would be great if we could pick the battles that get played out to determine what the cases are. If it could be an issue like you were just describing, that would be wonderful. But it may be over some ridiculous zoning statute that isn't even environmental. It may even be anti-environmental, but we would be defending it because we have to defend regulation... Is there a way to play the game here so that the facts of the issue that's before a court, or the examples or case studies that are used in the arguments of the legislative part are in fact things that play our way to broaden the support base for property regulation?”

Copyright © 1993 Erich Veyhl and Land Rights Letter. All Rights Reserved

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