Tag: property rights

Judicial Takings and Scalia’s Shifting Sands

Last term, the Supreme Court decided what could end up being an important precedent for protecting property rights – even as the Court ruled unanimously against the property owners in that particular case!  How is this possible?  Read the new article by Cato legal associate Trevor Burrus and me, “Judicial Takings and Scalia’s Shifting Sands.”

Here’s the background:  Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida’s gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners’ lawsuit against the state, the Florida Supreme Court (SCOFLA, if you remember your Bush v. Gore trivia) departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court effectively discarded 100 years of property law and rewrote the definition of property.

The U.S. Supreme Court had never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner’s due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners.

In June, Court finally decided Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The decision waded through a jumbled mass of arcane waterfront law to reach a very simple and unanimous holding: the Florida Supreme Court did not subvert an existing property right to such an extent that its decision constituted a “judicial taking.”  The state won.  The property owners lost.  SCOFLA was vindicated.

Still, while all eight justices ultimately ruled for the state – Justice Stevens recused himself because his Florida property is subject to the renourishment program – six accepted the idea that judges can violate the Constitution by reinterpreting pre-existing property rights (albeit under two different theories), and the other two declined to reach the question.  Although the Stop the Beach Court found that SCOFLA had not departed from sufficiently established state property law to constitute a taking, the idea of a judicial taking – whether through the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Due Process Clause – is very much alive.

And that’s where our article in the Vermont Law Review picks up.  In this article, Trevor and I examine the background of the judicial takings doctrine, react to the Court’s decision here in light of Cato’s amicus brief, and contrast Justice Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Cato Unbound: Property, the State, Libertarians, and the Left

Talk between libertarians and the left usually follows one of two scripts, each of which frustrates me.

In the first script, both sides find things that they can safely dislike together – war, eminent domain, small business licensing – while carefully avoiding all the contentious areas. They’re a lot like that recently divorced couple at the Christmas party you’ve just attended, chattering as much as they dare… but mostly about the weather.

In the second script, someone yells “Taxation is theft!” or “You hate the poor!” and it’s not long before someone gets a drink thrown in their face. Perhaps also like that Christmas party you’ve just attended.

If I may say so myself, this month’s Cato Unbound has been quite different. The disagreements have been sharp, but well-informed and polite. (Even the libertarians are disagreeing among themselves; it’s a good sign that our movement isn’t just a set of dogmatic propositions, as some have claimed.)

As readers may already know, the December issue is about the role of property rights in social democracy. Discussants Daniel Klein, David D. Friedman, Ilya Somin, and Matthias Matthijs are arguing about whether social democracy entails the concept of overlordship – that is, the idea that the state must be the final, true owner of all property in a social democracy. If it’s not explicitly and by declaration, then at least it’s implicitly and by inference from its actions.

Klein shows that social democrats were once quite explicit on the point, and did indeed portray themselves as would-be overlords. Today they have to be cagier, but the claim remains logically implicit, he says.

Friedman argues that property has existed without the state, and perhaps even before the dawn of the human race. The state might claim any number of things, but we should judge it by what it actually accomplishes.

Somin suggests that today’s social democrats aren’t really overlords; they’re pragmatists without much in the way of theoretical principles at all.

And Matthijs actually is a social democrat. A proud one, by the look of it. He’s even European! Rights aren’t meaningful unless something enforces them, he argues, and the state does the work we all depend on. In this sense, all rights are artificial; all rights are created by the state. And he’s gamely defending his claims against a barrage of libertarian criticism.

Is your blood boiling? Or are you giggling behind your hand? Either way, grab yourself another egg nog, promise not to throw it at anyone, and go read the discussion for yourself.

More on Columbia’s Abuse of Property Rights

Six weeks ago, Cato filed an amicus brief supporting a challenge to Columbia University’s strong-armed attempt to condemn and take over certain land in Upper Manhattan.  Tomorrow, the Supreme Court will consider the cert petition our brief supports, with a decision on whether it hears the case expected Monday.

In what is probably not a coincidence, then, the Columbia Spectator today came out with a lengthy feature story examining the story behind the dispute, controversial “blight” designations and all.  This is excellent student journalism – heck, excellent journalism, period – and here are some key excerpts (full disclosure: the author interviewed me for the piece):

Since it proposed the expansion, Columbia has rapidly made deals with property owners and gained control over nearly every lot in the zone – except for two who have fought to hold on to their land….

And Columbia has repeatedly said that those parcels, which represent a total of around nine percent of the expansion zone, are vital to the vision. 

Eminent domain – the process by which the state seizes private property for the “public good,” providing just compensation for the owner – officially came into the picture in 2004, when the University asked the state to consider condemnation.

And here’s the crux of the legal dispute:

Some neighborhood tenants and owners – most no longer in Manhattanville as Columbia continues to break ground and demolish properties – have strongly contested this blight label.

Nuss remembers a community vibrant enough to support his improvisational group – the No-Neck Blues Band – local businesses, and his family. He raised his daughter in the Hint House….

But it’s sometimes hard to believe Nuss is talking about the same area as other residents who say they agree with the determination of blight….

This disparity in views on Manhattanville’s conditions touches upon a fundamental question when evaluating the process that paved the way for Columbia’s expansion: Was the neighborhood really blighted, and given the process by which the criteria of blight were determined, was the state’s designation of blight an appropriate justification for the use of eminent domain for a private university?

My sense is that whatever ”blight” there is was caused by Columbia itself:

“It’s akin to the kid who kills his parents and begs the court’s mercy for being an orphan,” says Ilya Shapiro, senior fellow with the Cato Institute, which filed an amicus brief to the U.S. Supreme Court supporting the Manhattanville property owners. “You’re creating your own blight. It doesn’t pass the smell test.”

Read the whole thing.

How Capitalism Saved the Pilgrims

When I was growing up, my father would occasionally tell me the story around this time of year of how private property rights saved the Pilgrims from starvation.

When the Pilgrims first arrived in 1620, as my father told the story, they tried to live communally according to the spirit of the Mayflower Compact. What crops they grew were put in a common storehouse and then apportioned according to each family’s need. The small colony struggled to survive for two or three years until its leaders declared that every family henceforth would be responsible for growing its own food. The new system proved much superior at putting food on the table.

Years later, when I was writing editorials for the Colorado Springs Gazette, I would tell the story in print on Thanksgiving Day, this time quoting from Governor William Bradford’s first-hand account. One of my fellow editors objected to my version, claiming it was Squanto the friendly Indian who saved the Pilgrims by teaching them how to fertilize their crops with dead fish. We agreed to disagree and I stuck to my version.

Earlier this year, as I was reading Nathaniel Philbrick’s bestselling book, Mayflower: A Story of Courage, Community, and War (New York: Penguin Books, 2007, paperback edition), I came across a passage that weighs in decisively on our editorial dispute. It appears my father did know best after all.

From page 165 of Mayflower:

The fall of 1623 marked the end of Plymouth’s debilitating food shortages. For the last two planting seasons, the Pilgrims had grown crops communally–the approach first used at Jamestown and other English settlements. But as the disastrous harvest of the previous fall had shown, something drastic needed to be done to increase the annual yield.

In April, Bradford had decided that each household should be assigned its own plot to cultivate, with the understanding that each family kept whatever it grew. The change in attitude was stunning. Families were now willing to work much harder than they had ever worked before. In previous years, the men had tended the fields while the women tended the children at home. “The women now went willingly into the field,” Bradford wrote, “and took their little ones with them to set corn.” The Pilgrims had stumbled on the power of capitalism. Although the fortunes of the colony still teetered precariously in the years ahead, the inhabitants never again starved.

Among the many things I’m thankful for this week is that I live in a country that was founded on the solid rock of property rights and free markets.

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If Only Hawaii’s Government Were as Beautiful as Its Beaches

Throughout history, people have fought over beaches, including in the legal arena. In the latest case in which Cato has filed an amicus brief, a state has once again redefined property rights to take possession of highly-valued beachfront property.

In 2003, Hawaii passed Act 73, which took past and future title to accretions (the slow build-up of sediment on beaches) from landowners and gave it to the State, changing a 120-year-old rule. While waterlines are unpredictable, the original rule — common to most waterfront jurisdictions — helped establish legal consistency. Indeed, without such a rule, beachfront property becomes beachview property in just a few years.

In response to Act 73, homeowners sued the state, claiming that the law violated the Takings Clause of the Fifth Amendment or, in the alternative, the Due Process Clauses of the Fifth and Fourteenth Amendments. The state appellate court held that compensation was owed only for the accretions that had accumulated before Act 73’s enactment because the right to subsequent accretions had not “vested” (the legal term for when an expectation becomes an actual property right). Hawaii’s Supreme Court declined to review that ruling, so the property owners asked the U.S. Supreme Court to do so.

Cato, joined by the Pacific Legal Foundation, filed a brief supporting that petition and argues that the appellate court’s decision was contrary to long-standing definitions of waterfront property rights. Our brief highlights the increasing need for the Court to establish and enforce a judicial takings doctrine.

More and more states are using backdoor tricks — like legislative “guidelines” and judicial creativity — to take property in violation of constitutional rights: This Hawaii case is distressingly similar to last term’s Stop the Beach (in which Cato also filed a brief). In that case, Florida took property by adding sand to the beach and then laying claim to the newly created land — in essence asserting that property that was defined by contact with the water (in technical terms, “littoral” or “riparian”) had no right to contact the water. The Court ruled that while Florida’s actions did not rise to the level of a judicial taking, a large enough departure from established common-law rules could constitute a constitutional violation.

In this latest brief, we highlight both the largeness of Hawaii’s departure from established law and the spate of such actions in recent years — which circumstance calls out for Supreme Court review.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii and the Court will decide later this fall whether to take it up.

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

Bulldozing Homes, Billing Homeowners

Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district – and billing the homeowners for the cost of demolition:

Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:

Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you.  Oh, and you’re paying for it.

This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.”  It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).

Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days … the city can sell your now-vacant land to the highest bidder.

The rest of her article is here.  Also, see ABC News, Big Government and Reason magazine.  And you can find Cato’s work on property rights here.