Takings fifth

===

see RW legal firms

note how this keeps expanding from actual property (like land) to IP; --> future potential profits? UFW case?

===

wiki

The basic issue before the justices was whether the union organizer visits to the petitioners' facilities is a physical taking of property and therefore automatically subject to an injunction or mandatory compensation under the 1982 case of Loretto v. Teleprompter Manhattan CATV Corp. or, instead, whether the petitioners' claim should be evaluated under the various factors outlined in the 1978 case of Penn Central Transportation Co. v. New York City.^[5]

The Supreme Court heard oral arguments on March 22, 2021. Cedar Point Nursery and Fowler Packing Co. were represented by the **Pacific Legal Foundation**.

The Court issued its decision on June 23, 2021. In a 6–3 decision, the Court reversed the Ninth Circuit decision and remanded the case back for further review. The majority opinion was written by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Kavanaugh also wrote a concurring opinion. Roberts wrote "The access regulation amounts to simple appropriation of private property" and that "access regulation grants labor organizations a right to invade the growers' property. It therefore constitutes a per se physical taking" without compensation.^[1] Roberts stated that this would not affect functions like government inspectors as those are beneficial to both employees and the public.^[1]

Justice Stephen Breyer wrote the dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. Breyer wrote that the access granted to union organizers was only temporary and not permanent and thus should not be considered a taking, since the agricultural worked are not "forever denied" use of the property, and thus the law was "not functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain".^[1] Breyer also expressed concern that the majority opinion may be used broadly by landowner to block access from inspectors such as those "to verify proper preservation of wetlands or the habitat enjoyed by an endangered species, or for that matter, the safety of inspected meat".^[1]

===

https://www.jdsupra.com/legalnews/supreme-court-decision-in-cedar-point-4375087/#:~:text=In%20Cedar%20Point%20Nursery%2C%20the,automatically%20counts%20as%20a%20taking.

Supreme Court Decision in Cedar Point Nursery v. Hassid May Provide Businesses New Opportunity to Challenge Regulations

On June 23, 2021, the Supreme Court decided *Cedar Point Nursery v. Hassid*, a case involving a California regulation that requires employers to allow union organizers to enter their property to solicit members. In a 6-3 ruling along ideological lines, the Court stood with property owners and held these unwanted intrusions constituted a “taking” under the Takings Clause of the Fifth Amendment. Chief Justice John Roberts explained in his majority opinion that allowing unions to freely come onto privately held land was a violation of property owners’ constitutional rights, even if unions “only” had fleeting access to the land. But this seemingly sweeping ruling declines to extend this logic to things like regulatory inspections overseen by state workers.This should serve as a powerful reminder that a conservative court is not a panacea to bureaucratic overreach, and regulatory reform must come through legislative and executive processes. This advisory breaks down the Court’s opinion and explores how the ruling might provide grounds for challenging other regulations.

Majority Opinion

The central issue in Cedar Point Nursery was the constitutionality of a California “access regulation” that requires farm owners to allow labor union organizers to access their property in order to “solicit support for unionization.” The regulation provides that union organizers can access an employer’s property for up to three hours a day and 120 days per year. The farmers claimed the regulation amounted to the government taking their property without compensation, which is a violation of the Fifth Amendment.

The Fifth Amendment prohibits property from being “taken for public use, without just compensation.” A typical example of a taking occurs when the government uses its power of eminent domain to seize someone’s land for the purpose of building an airport or widening a road. The Fifth Amendment requires the government to pay for that land. Government regulations can also count as takings. For example, in one famous case, the Supreme Court ruled that a New York regulation requiring a landlord to install TV cables on her apartment building was a taking, since the regulation caused a “permanent physical occupation” of her property.

In Cedar Point Nursery, the Supreme Court ruled that the California access regulation is a taking because it forces farmers to give union organizers physical access to their property. The Court explained that any regulation that physically “invades” a person’s property automatically counts as a taking. The Court also stressed that “the right to exclude is ‘universally held to be a fundamental element of the property right’” in land. Since the access regulation limits the farmers’ “right to exclude” and forces them to give union organizers physical access, it takes away enough of the farmers’ property rights to require compensation under the Fifth Amendment.

How Much Should The Government Pay?

One question that Cedar Point Nursery leaves open is what courts should do if they determine that a regulation is a taking. Since the Fifth Amendment requires the government to compensate an owner for a taking, courts usually direct the government to pay the value of the land the government took. When a taking is temporary, compensation usually equals the rental value of the property while it was taken. But in cases like Cedar Point Nursery, where the government limited the farmers’ property rights without taking their property altogether, proving the appropriate amount of compensation is difficult.Justice Amy Coney Barrett suggested that the compensation could total as little as $50 for a union site visit. But the majority did not address this issue, leaving it to lower courts to apply different approaches.

New Path To Challenging Regulations?

The Court’s holding that some temporary physical invasions are per se takings could make it easier for businesses to challenge other regulations that give the government or others access to private property. Indeed, one commentator called the Cedar Point Nursery ruling “acrushing blow to organized labor, which often relies on workplace access to safeguard workers’ rights.” In reality, the case is less about the right to bar unions from one’s property than about the taking of one’s property without the “just compensation” demanded by the Fifth Amendment. That right to compensation could be extended to other regulations.Examples include the Occupational and Safety Health Act (“OSHA”), which requires employers to give a government inspector and employee representative (often designated by a union) access to their premises.See29 C.F.R. § 1903.3 (2021). However, the Court’s ruling identified some important caveats that could complicate efforts to challenge OSHA and other regulations.

First, the Court said that a regulation will not rise to the level of a taking unless an owner’s property is accessed multiple times. Unlike the access regulation, where union organizers entered the farmers’ property year after year, one or two instances of property access will not suffice. Second, the Court clarified that the government may always access private property in exceptional circumstances, such as “in the event of public or private necessity.” Finally, the government may require an owner to allow access to his land in exchange for some benefit, like a building permit. The Court explained that as long as the government’s access to the property has a reasonable connection to the benefit offered, the access is not a taking. Indeed, Chief Justice Roberts seems to have no problem with this course of action. He wrote: “[T]he government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking . . . . [G]overnment health and safety inspection regimes will generally not constitute takings.” This comports with longstanding precedent upholding the government’s broad discretion to place reasonable restrictions on a business’s activity. Litigants who hope to use the Cedar Point Nurserydecision to challenge other regulations will need to explain why none of these three exceptions applies.

Businesses may have an opening to challenge certain regulations following the Cedar Point Nursery decision. Still, the exceptions in the Supreme Court’s ruling will likely limit its impact, as will the challenge of proving how much compensation the government owes.

Summer associate Micah Allred assisted in the preparation of this advisory.

===

comm dr greg c 2024

let’s Wish Corporate Constitutional Rights a Very Unhappy Birthday

The actual “birth” of corporate constitutional rights, often referred to as “corporate personhood,” wasn’t Citizens United; it dates to May 10, 1886 in the Santa Clara v. Southern Pacific Railroad Company ruling.

GREG COLERIDGE JENNIE SPANOS

May 10, 2024Common Dreams

The origins of the current political influence by weapons corporations to profit from perpetual wars, occupations, and arm sales; the fossil fuel industry to continue burning oil, gas, and coal in the face of irrefutable evidence that it’s overheating the planet; and insurance and pharmaceutical corporations to prevent the enactment of Medicare for All aren’t any law, regulation, or executive decision. Rather, they’re Supreme Court rulings that define corporate entities as legal “persons” with many of the same rights as human beings under the U.S. Constitution.

This reality didn’t begin with the *Citizens United v. FEC* 2010 decision, contrary to common belief. Citizens United simply expanded corporate First Amendment “free speech rights” to directly donate (or, more accurately, invest) in elections that originated with the *First National Bank of Boston v. Bellotti* case in 1978

The actual “birth” of corporate constitutional rights, often referred to as “corporate personhood,” dates to May 10, 1886 in the *Santa Clara v. Southern Pacific Railroad Company* ruling. The summary of the tax case, called the “headnotes”—not the actual decision—granted the railroad corporation with “equal protection rights” under the 14th Amendment.

All the good work by individuals and organizations to legalize protections of individuals, communities, and nature and hold corporate entities accountable for their harms will never be systemically achieved as long as we continue to constitutionalize corporate rights as equivalent to the rights of human persons.

The 14th Amendment granted citizenship to all persons born or naturalized in the U.S, including former enslaved human beings. Although it was not intended to apply to corporations, they hijacked the Amendment for their political and economic benefit. As former Supreme Court Justice Hugo Black declared, “Of the cases in this court in which the 14th Amendment was applied during the first 50 years after its adoption, less than one half of 1% invoked it in protection of the negro race, and more than 50% asked that its benefits be extended to corporations.”

Human persons are grossly unequal to corporations. Bankruptcy, tax, and criminal laws are more favorable to “corporate persons” than human beings. Corporations can write off certain legal expenses; real people can’t. Laws increasingly allow corporations to design arbitration rules that force employees and customers to settle disputes over unsafe products, consumer fraud, employment discrimination, nonpayment of wages, and other instances of corporate malfeasance. And unlike human persons with limited lifespans and physical mobility, corporations can live forever and legally and quickly move assets between physical locations to evade accountability.

The Santa Clara corporate perversion of the 14th Amendment profoundly shifted how corporations were defined. Until then, state legislatures granted individuals a corporate charter, or license, to conduct business. The charter established specific standards for a limited period, after which in many instances the business became public. The charter’s terms were privileges, not rights. If the business violated the charter’s terms, it was revoked by state legislatures or courts, which frequently occurred, and the company was dissolved. The same occurred following the shift from individually granted charters to the creation of state laws addressing entire categories of corporations, such as banks, railroads, and canals.

Santa Clararepresented a tectonic antidemocratic shift in the authority to define corporate entities—from the state legislative arena to federal courts, specifically the U.S. Supreme Court, which was beyond the direct reach of citizens and elected officials. It unleashed business corporations to massively plunder, profit, and protect themselves from democratic accountability, resulting in the declining protection of people, communities, and the ability to ensure a livable natural world.

Corporate First Amendment political “free speech” rights to invest money in elections, including the Citizens Uniteddecision, is the most recent constitutional descendant of the Santa Claraprecedent. There are many others.

√ First Amendment Right Not to Speak, Negative Speech Rights and Commercial Speech Rights

The Supreme Court overturned a California state law allowing a ratepayer advocacy group to enclose information in the utility corporations’ billing envelopes calling for regulations that would lower utility rates and a New York law that would save energy by banning the promotion of the use of electricity by a utility corporation.

A court also overturned a Vermont law mandating the disclosure of a dangerous synthetic growth hormone on dairy products.These court-invented rights have been used by corporate entities to defy the legitimate rights of people to know factual information; the authority of government to protect the health, safety, and welfare of residents; the provision of basic health needs of employees; and the ability to hold corporations publicly accountable.

VS TWITTER FILES BS?

√ Fourth Amendment Search and Seizure Rights

The Supreme Court overturned laws mandating routine surprise inspections of corporate property, claiming the “right of the people to be secure in their persons [and] houses... against unreasonable searches and seizures” applied to corporations. These judicial decisions treat corporate entities like human persons, even though the Fourth Amendment’s original language applies only to human beings, their homes, and personal effects. Governmental attempts to protect the public from the dangers stemming from commercial activities like food contamination, drug impurities, automobile defects, and environmental hazards are thwarted by removing surprise inspections, thus allowing businesses to hide, alter, or disguise dangerous conditions.

BOEING DOOR 737 MAX?

√ Fifth Amendment Takings Rights

The Supreme Court has struck down regulatory laws protecting homeowners and workers from corporations, claiming the laws are a “taking of property without just compensation.” This includes a Pennsylvania law regulating the mining of coal beneath homes to prevent their sinking and a California law allowing union organizers from having access to agricultural employees at worksites under certain conditions.

Public laws to protect residents, communities, and the natural world should supersede legally mandated compensation of lost present and future corporate profits. This is especially urgent as it becomes more evident that to tackle climate change, fossil fuels must be kept in the ground. This may simply not be possible as long as corporations can assert Fifth Amendment “takings rights.”

Corporate constitutional rights transcend Citizens United and corporate First Amendment political “free speech” rights. All the good work by individuals and organizations to legalize protections of individuals, communities, and nature and hold corporate entities accountable for their harms will never be systemically achieved as long as we continue to constitutionalize corporate rights as equivalent to the rights of human persons.

The We the People Amendment (HJR54) is the only current proposal that seeks the abolition of all corporate constitutional rights. More support is needed to add co-sponsors. The amendment, however, will never achieve sufficient power to make change until we decolonize our minds from believing that corporate rule and rights are inevitable and irreversible. A good place to start, especially on this day, is to internalize the statement: “Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that a property is a person.”

It’s time we quickly end the life of constitutional corporate persons.

===

torres-sp

Chapter 10 · Fracturing Politics 193 FRACKING

Robert Monk: corps "externalizing machines" 195 once ran coal co , cheap only if ignore rx effects; "death machine";

PUCregulatory capture when only corps show up for mtgs, tough b/c very technical and hard for regular people to grasp; even tougher when info secret proprietary p199 Colo nurse treated man who spill frack fluids on self (fumes from boots?) she had mult organ fail and nearly died, Cathy Behr; ZetaFlow co wd not tell Dr what was in fluid 200; data sheet 2 proprietary compounds; 14% sheets complete, ½ of products less than 1% could be determined 201; Hallib said reveal wd be unconstitutional TAKING; told Colo if forced to reveal wd leave state 202; ~ scotus precedent: 2015 Horne v Dept Agr upheld 1984 Ruckleshaus NOT taking.

When facts not on corp side, shift to disinfo PR campaign eg AGW; tobacco doubt science playbook;

Reg capture MMS; ALEC PA Dr gag rule frack; state must step up when fed fail [but colo state frack ~ local ords]

===

https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/

https://en.wikipedia.org/wiki/Vanita_Gupta

The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States,

damien

Money in Politics: On behalf of the Pacific Legal Foundation,Mr. Schiff authored an amicus brief in Citizens United v. Federal Election Commission that called for corporations to have the same First Amendment rights as human beings. He wrote that the “distinction between natural and corporate persons” was unjustified and that “[t]he core political speech protections of the First Amendment should be open to all equally.”[[14]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn14) He also asked the Supreme Court to reverse longstanding precedents that had upheld sensible campaign finance restrictions. In a blog posting about the Citizens United case, Mr. Schiff wrote: “PLF’s brief also makes the larger point that corporations provide significant societal goods, and that their speech (which really is nothing more than the combined speech of the natural persons who form the corporation) should be encouraged, not censored.”[[15]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn15)

Environmental Rights: Mr. Schiff has expressed contempt for federal environmental laws that protect clean air, clean water, and wildlife. In a February 2017 article entitled “Environmental Law – A Good Place to Start for Trump to Make America Great Again,” he wrote that “the sad reality is that, as a result of environmentalist litigation and agency misrepresentation, these statutes [the Clean Water Act, Clean Air Act, and Endangered Species Act] often are enforced not for the public’s benefit but to stop productive activity that activists or bureaucrats dislike. Such misuse needlessly increases costly regulatory burdens, creating a crippling drag on the economy.”[[16]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn16) He also proposed an extreme suggestion for Fifth Amendment takings claims, writing: “To make this key right effective, federal agencies should be required to provide compensation when their environmental regulations substantially reduce the value of one’s property.”[[17]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn17)

In 2011, Mr. Schiff was interviewed by Lou Dobbsabout a case in which he was representing an Idaho family who had sued the Environmental Protection Agency for denying them a permit to build a home because it qualified as a wetland under the Clean Water Act. Mr. Schiff stated: “This is a problem with the agency across the board treating American citizens as if they were not American citizens, as if they were just slaves, and it’s atrocious.”[[18]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn18)

In 2013, Mr. Schiff lambasted the Endangered Species Act in a Wall Street Journal op-ed, in which he wrote that “the law has endangered the economic health of many communities – while creating a cottage industry of litigation that does more to enrich environmental activist groups than benefit the environment. How did things get so turned around? Blame the bureaucrats of the Endangered Species Act. They have administered the law poorly and flouted provisions designed to promote good science and good sense.”[[19]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn19) In an article published in April 2017, on Earth Day, Mr. Schiff continued his campaign against the Endangered Species Act, writing: “Unfortunately, the good intentions of that statute – much like those of Earth Day itself – have been perverted to make it, in too many cases, a threat to individual liberty and property rights.” [[20]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn20)

Property Rights: Mr. Schiff has brought a number of takings cases during his tenure at the Pacific Legal Foundation. For example, he sued San Jose, California for passing an affordable housing ordinance in 2010 that required at least 15 percent of new residential development projects to be sold at affordable prices. Mr. Schiff, on behalf of a building industry association, claimed this law was an unconstitutional taking. The California Supreme Court rejected Mr. Schiff’s argument and unanimously upheld the ordinance.[[21]](https://civilrights.org/resource/oppose-confirmation-damien-m-schiff-u-s-court-federal-claims/#_ftn21)

===

https://www.npr.org/2021/06/24/1009750949/supreme-court-justices-hand-farmworkers-union-a-loss

sTEVE INSKEEP, HOST:

The Supreme Court has once again tightened the leash on labor unions and their ability to organize workers. The spotlight was on the United Farm Workers and a California law which allowed union organizers to enter farms to speak to workers during non-working hours for a limited number of days each year. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: By a 6-3 vote along ideological lines, the conservative court majority gutted a California regulation enacted nearly 50 years ago after a campaign by famed union organizer Cesar Chavez. The court said that the law unconstitutionally appropriated private land by allowing union organizers to go on to farm property to drum up union support. The decision, however, stopped short of imposing similar restrictions on the federal labor law, and the court said its decision did not apply to government health and safety inspectors and their access to private property. Federal protections for union access to the worksite were first enacted in the 1930s, but farmworkers were excluded from the law, an exclusion that California sought to make up for nearly a half-century ago.

But after the Supreme Court's decision on Wednesday, California's regulation is, for all practical purposes, gone. Mario Martinez, general counsel for the United Farm Workers Union, contends that in the 1930s, race was the motivating factor in excluding farmworkers from the original federal law protecting union access to the workplace. And now, he says, migrant workers, some of the poorest laborers in the country, are again being left out.

MARIO MARTINEZ: You double down on that exclusion and discrimination by saying that a state law that's been in existence for almost 50 years is not respectful of the growers' rights. But, obviously, there was no discussion of the workers who are essential workers to feed America. There was no discussion of their rights at all.

TOTENBERG: Other union leaders echoed that sentiment. Nicole Berner, general counsel for theService Employees International Union, says if workers learned anything during the pandemic, it was that they needed a union to defend their rights.

NICOLE BERNER: Farmworkers kept working to keep food on all of our tables, and now, because of today's ruling, they'll face even greater obstacles in their efforts to improve their working conditions.

TOTENBERG: Wednesday's decision, written by Chief Justice John Roberts, said that California's regulation amounted to an appropriation of the growers' property, an unconstitutional physical taking of their land without the just compensation required by the Constitution. Joshua Thompson of the Pacific Legal Foundation, which represented the growers, said the court gave them exactly what they asked for.

JOSHUA THOMPSON: When the property rights are infringed by denying farms the right to choose who can come inand cannot come into their property, constitution demands that the government pay for that right.

TOTENBERG: Thompson noted accurately that some of the protections for union organizers' access enacted into the federal law in the 1930s have been eroded by the Supreme Court over time. But Wednesday's decision was only the latest in a series of decisions over the last 16 years that have aimed directly at the heart of organized labor in the United States. The culmination came in 2018, when the court hamstrung public-sector union efforts to collect partial dues from non-union members to cover the costs of collective bargaining. In that decision, the court, by a 5-4 majority, overturned a 40-year-old precedent that had allowed unions to collect limited so-called fair share fees from workers who were not in the union but who benefited from the terms of the contract that the union negotiated.

Wednesday's decision was a potentially mortal blow to the farmworkers in particular. But Mario Martinez, the union's counsel, says there are ways to fight back, from organizing boycotts through social media against particular growers to other measures, including strikes that could make it painful for the growers. UCLA law professor Katherine Stone has written multiple books on labor and employment law.

KATHERINE STONE: Whether it's going to happen within the context of the labor law or whether we're going to have a whole new era of labor warfare is an open question. If you don't have orderly mechanisms to deal with worker organizing and to deal with collective action of workers, then you get disorderly mechanisms.

TOTENBERG: Joining Chief Justice Roberts' opinion yesterday were the court's five other conservatives.Justice Stephen Breyer wrote the dissent for himself and the court's two other liberals.They said that allowing temporary access to an employer's property in non-working hours is not the same thing as a physical taking of property that would require compensation. Nina Totenberg, NPR News, Washington.

===

hmn wiki

This power is limited in the :{Fifth Amendment to the United States Constitution}:, and extends to the states under the Due Process Clause of the :{Fourteenth Amendment}:. (The Fifth Amendment prohibits the federal government from taking property for public use without "just compensation," which American courts have interpreted in the usual case to mean "fair market value".) This prohibition is deemed incorporated in the Due Process Clause of the Fourteenth Amendment (which bars state governments from depriving people of their property without due process of law.)

http://en.wikipedia.org/wiki/Regulatory_taking

===

IRATE

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922)

In Mahon, the U.S. Supreme Court held that the rights written into the general mining deeds

acquired by Pennsylvania Coal Company (PCC) in 1889 constituted a “property” of the

corporation, and that this property was protected against an arbitrary “taking” by the state.

Enacting the 1921 statute amounted to the “taking” of certain corporate property rights by the

state of Pennsylvania (PA), without just compensation, because it required the coal company to

take necessary precautions such that subsidence of the mines would not occur.

Issue: Is a corporate regulatory law, enacted by a state to protect its citizens and environment,

a taking that must be compensated?

Rule: The Fifth Amendment states that “[N]or shall private property be taken for public use

without just compensation.” Does this clause apply to corporations exactly as to persons?

Application: Petitioner Mahon purchased a home in Scranton, PA, in the early 20th century. A

clause buried in his title deed contained a general right by PCC to mine coal under Mahon’s

property. That clause also made PCC blameless should subsidence or collapse of the surface

property occur as a result of subsurface mining. When a mine collapsed, Mohan's home was

damaged.

The PA legislature had enacted a statute in 1921 that forbade any mining operation from

causing subsidence of surface land, with certain exceptions. The Court stated that Mahon was

bound by the provisions of his title deed, which transferred all risk of subsidence due to

subsurface mining to him, the owner, leaving the mining company blameless. The court found

the provision of the 1921 Pennsylvania law unconstitutional, as it failed to adequately

compensate any mining corporation for its loss of property rights. Those rights were written

into the general mining deeds acquired by PCC in 1889. The mining company could not be held

liable for any damage to surface homes due to subsurface mining. That would be an illegal

“taking” of property without compensation.

Transformation: The ability of a corporation to acquire general property rights, including

those acquired decades earlier, and to preserve those rights against subsequent state

regulatory action, was upheld under this decision. A corporation that acquired a general

subsurface mining deed in the nineteenth century would hold it essentially forever, binding

future surface property owners to it, and could profit from it.

Effect: A state is powerless to regulate corporate damage to third parties unless the

corporation is suitably compensated for the effect the regulation has on the corporation.

Ancient mining laws, in particular, are upheld regardless of their deleterious effect on the

present citizens and their properties. In effect, a corporation is protected under the Fifth

Amendment against an arbitrary "taking" of its property, however and whenever those property

rights were acquired.

Fictional Representational Story: My name is Mary. I purchased a home in a coal region of

PA. My home began to subside, requiring expensive repairs to the structure. I discovered that a

coal company has been mining under my property, and that a large section of the mine had

collapsed. I discovered a clause in my title papers that permits subsurface mining under my

property, and that the mining company must be held blameless for any surface damage caused

by the mine. This is in spite of a state statute forbidding any coal company from causing such

damage, whether or not a general property deed protects the coal company. Under this

Supreme Court ruling, I am unable to recover the cost of repairs to my home from the mining

company. I've lost my home to subsidence of the land.

Written by: William Barrett Disclaimer: For educational purpose only.

===

Sunday, July 08, 2007

A Little History of the Pacific Legal Foundation

:{The legal team that successfully put their argument for resegregation before the conservative majority the Supreme Court has a history of standing up for the trampled rights of corporations, particularly corporate polluters. In the 70s, this group of crusaders supported all sorts of corporate rights, from spraying DDT and herbicides in national forests, to arguing for the inalienable rights developers in property disputes, to campaigning against affirmative action policies. From ExxonSecrets.org:

The Pacific Legal Foundation was the nation's first business oriented public interest law firm founded in 1973 by members of the California Chamber of Commerce. PLF was politically supported by officials in then Governor Ronald Reagan's cabinet, including founding member Edwin Meese.

PLF's initial financial support came from members of the California Chamber of Commerce and J. Simon Fluor of the Fluor Corporation's oil, nuclear and mineral dollars. Anti-environmental from the start, PLF's early actions supported the use ofDDT,the use of herbicides in national forests, and the use of public range land without requiring an environmental impact review. They also supported at least six pro-nuclear power cases before the early eighties while accepting funding from Pacific General Electric (PGE), a utility which has gained a great deal through the development of nuclear power in the Pacific Northwest.

In the nineteen-eighties PLF won several cases that are considered land marks by those working on property rights issues today: Nollan v the California Coastal Commission and First Church, both Supreme Court victories which provide precedence for the takings litigation pursued today (Oliver Houck, "With Charity For All," Yale Law Journal, 1993).

===

demented:

Similar to the anti-Agenda 21 and Tea Party protests of today, Wise Use has a parallel history of fomenting dissent at the behest of private industry’s interests with overblown, nonsensical, and apocalyptic language against any and all environmental regulations. It is the same international, socialist, enviro-Nazi conspiracy rhetoric and coordination tactics, and the same names that are seen today. Rather than battles over stream restoration and endangered species, the focus has now turned toward urban planners and zoning regulations.

Also known as “Multiple Use,” or “Shared Use” in Canada, the Wise Use movement is a collection of private interests—mining, timber, ranching, construction, agriculture, chemical manufacturers, and oil and gas companies—who have been battling with the federal government over natural resource rights and regulations since the days of Teddy Roosevelt.

Ever since the Mining Act of 1872, private resource industries have had free use of federal lands in many locations to mine, log, and graze cattle with little or no payment to the government. When the government tries to regulate access to those federal lands—be it by blocking stream access to ranchers, closing off mountain roads to loggers, or regulating pollution in the vicinity of a mining operation—legal, political, and sometimes physical conflicts have erupted over whether these actions constitute a “taking.” If an environmental regulation is defined as a taking, rather than the EPA fining polluters for not regulating their emissions properly, polluters could sue the government for the loss of potential income from said restriction. Such a decision would set a precedent that, applied across many mining operations, oil refineries, and chemical plants, would mean billions in government payouts.

In the seventies, this dissent against government control of public lands led a number of ranching groups to form the Sagebrush Rebels. The Sagebrush Rebels were allied to fight the implementation of the growing environmental movement who had won numerous legislative victories in the late sixties and seventies: the Wilderness Act, Roadless Area Review and Evaluation Act (RARE), National Environmental Policy Act (NEPA), Federal Land Policy and Management Act, and National Forest Management Act. These policies were put in place to restrict access to government-owned lands and resources that were being used for free or for far below market value while being maintained by the government. The Sagebrush Rebel alliance was able to push their pro-ranching, logging, and mining agenda into the White House with the election of Ronald Reagan in 1980.

The story ofWayne Hage is the prototypical example of this battle over government land regulation. A public lands rancher, he grazed his cattle on government-owned lands until the government blocked access to a water source used to feed his cattle. Hage sued the government under takings law for their restriction and eventually won. His twenty-plus-year legal struggle won him $14 million in damages plus interest, and he became a late symbol of the Sagebrush Rebellion and ranchers’ rights.

Because there is so much at stake, any struggle over government regulation anywhere in the country—from an easement used to create a bike lane, a zoning regulation on housing construction, or an attempt to designate a river as “wild and scenic”—could become legal precedent or a rallying point about the injustices of governmental interference and therefore a front line in the conflict over property rights. Throughout the nineties, natural resource industry interests took to this fight by funding front groups to help foment dissent against park rangers, environmental activists, or anybody that stood in the way of anything but one hundred percent private use of park lands.

Groups with innocuous-sounding names like “Friends of the Rivers” worked with right wing think tanks like the John Birch Society, the Heritage Foundation, and the Heartland Institute under the philosophy of Lyndon Larouche to claim a grand socialist plot by the UN. Calling environmentalists “watermelons” (green on the outside, red in the middle), they declared all EPA gestapo regulations to be part of an interconnected global hippie conspiracy aimed at destroying U.S. industry and a new paganism that “sacrifices people and worships trees” in order to recruit members and make money. In their view, ozone depletion was a concocted myth meant to justify land seizures. According to these groups, climate change is also a myth, trees cause smog, and toxic waste cleanup is a misuse of public financing.

Those same think tanks, funded by the natural resource industries, provided boilerplate legal language for politicians to employ across different states and local governments. Pro-bono legal organizations, like Pacific Legal Foundation and Mountain States Legal Foundation, were funded by the same natural resource companies and would seek out and represent individuals with disputes against the government over takings law. A 1984 Yale Law Journal analysis criticized them for not actually serving the public interest as required for 501(c)(3) designation. More often than not they were found to be serving the interests of their oil and ranching industry board members in lawsuits against environmental regulations.

The tactics of Wise Use are thoroughly documented in David Helvarg’s groundbreaking book The Battle Over the Greens. In it, Helvarg details the same ideology and tactics at the heart of the Tea Party and anti-Agenda 21 movements to come. In many ways, these later groups are merely an extension of Wise Use being led and reinforced by the some of the same actors. It is the same technique of strategic fearmongering at the local level for private interests. Or as Helvarg explains, “the strength of anti-environmentalism is not in its membership rolls but in its ability to mobilize a network of core activists to intervene in and politicize local conflicts, creating a perception of power that they hope can be used as a springboard for further expansion.”

Long before the Tea Party accused Obama of being an “Alinsky radical,” groups like Bill Grannell’s People for the West!, Charles Cushman’s National Inholder’s Association, and Ron Arnold’sCenter For the Defense of Free Enterprise used the techniques of Saul Alinsky to blame the preservationist elite for the ills of rural Montana. Bill Grannell even took Alinsky’s classes in Chicago before going on to use Alinsky’s tactics for the interests of ranching groups. Instigating instant riots at town meetings, spamming government fax lines, phone lines, and talk radio call-in shows, and threatening a UN takeover of all private property were some of the common tricks of the trade.

Financial backing for Wise Use would decline because of associations with militias in the wake of the Oklahoma City bombing and the election of a pro-industry president in George W. Bush, but it didn’t disappear. It would eventually make a new resurgence with the Tea Party and its short-lived attempt to alter the 2010 Congressional elections while denouncing the looming threat of Agenda 21.

The Paranoid Style in American Politics

The Wildlands Network, a small non-profit aimed at protecting native fauna on the verge of extinction by connecting habitats across the U.S., is often invoked as Agenda 21’s guideline for mass human relocation, but the project has been misinterpreted to the point of absurdity. They are often denounced as the architects of rural cleansing, where, in the interest of biodiversity and urban development, people in rural communities across the country will be forcibly moved out of their homes and into cities by the government through eminent domain.

Kim Vacairu, a representative of the Wildlands Network, responded plainly that the non-profit does no lobbying, does not work on policy, does not purchase land, does not work with eminent domain law, and “has never received a dime from the federal government.” They mainly work with private landowners, almost exclusively in the West, to create wildlife corridors between national parks so that mountain lions are not turned into roadkill.

Considering the amount of invective the Wildlands Network gets for being near the heart of the global conspiracy, Vacairu says that they rarely get any inquiries. “It hasn’t come up in the last two years.” Yet the group supposedly produced the “death map” (found across almost every Tea Party website rallying against Agenda 21), which lays out a plan for mass relocation of the human population.

The map shows all federally-owned lands combined with all state and county-owned lands, with restricted pathways interconnecting them. All of it is classified as off-limits to human activity. On the map, whole towns are designated as uninhabitable; the Adirondacks are a 9,375-square mile exclusion zone.

Independent of motive, the map would be damning evidence of a non-profit’s overreach if it did not show the copyright of the map’s actual creator, an organization by the name of Environmental Perspectives, in the lower-right corner. Environmental Perspectives had the map drawn up as a prop for Senator Kay Bailey Hutchison’s 1994 debate over the UN Convention on Biodiversity. Anyone can purchase a copy from the Environmental Perspectives website for $10 apiece.

The ire against Wildlands seems to be aimed not at that particular NGO, but at a nebulous “Wildlands Project,” which is used as a catch-all for any federal policy or NGO that attempts to protect National Park lands or endangered predators. At one point, environmental research professors Reed Noss and Michael Soulé outlined a Wildlands Project that would protect areas of biodiversity for endangered animals in the West, but Noss addressed the controversy in an interview with RANGE magazine, stating that:

There are unethical people out there perpetrating ridiculous lies in an attempt to discredit us. The Wildlands Project has never proposed relocating people to accommodate our reserve designs. [...] Nevertheless, certain folks in the Wise Use Movement have fabricated maps, attributed them to us, and circulated them to rural newspapers, websites, and so on, apparently intending to frighten local people and turn them against conservation. [...] Those relatively few private lands identified as core areas are lands belonging to The Nature Conservancy, land trusts, conservation-minded ranchers, and other folks who voluntarily manage their lands for conservation.

As it turns out,Environmental Perspectives is the brainchild of Dr. Michael Coffman. Although Coffman does not specifically work on Agenda 21, he does preach a Larouchian worldview that takes aim at international paganism, claiming that climate change is a hoax used to bring forth a biblical end times. With a background in forestry and previous work as a representative for the paper industry, he offers what he calls a Judeo-Christian stewardship of the environment that integrates free markets, private property rights, and traditional values, but mainly encourages industry to use as many resources as they want.

For someone threatening that a pantheistic cult is about to drive all of us off our property in preparation for the end times, Coffman’s tone is very reasonable. When mentioning the struggle for logging rights in the Adirondacks during the 1980s and 1990s, he strongly chided that, “the people there fought hard for economic use of their land all while being insulted by the New York Times,” framing it almost as a labor issue. This would be a compelling argument if not for the details of that struggle, which include an organized campaign of arson, gunfire, and death threats against the Adirondack Parks Agency, all for the sake of the timber industry, which had clear-cut the majority of the forest, risking the Hudson Valley watershed.

Coffman also runs the Local Environment and Resource Network (LEARN), which aims to inform localities on how to sidestep federal environmental regulations by establishing local policies. According to LEARN, an obscure loophole in the National Environmental Policy Act (NEPA) indicates that if a local or state government establishes their own unique environmental conventions, the federal government must cooperate with the locality. The LEARN success stories provided are the same battles of natural resource industry versus environmental regulations on national monument land seen during the Wise Use movement: mining road access, stream restoration easements, and timber salvage limits.

Coffman is also executive director ofSovereignty International, the organization founded in 1996 by Henry Lamb (with members of the National Federal Lands Conference and the cattle industry) that is dedicated to fighting global governance. Almost immediately after being created, Sovereignty International used their newfound existence to claim that the UN was looking to establish an international “blue hull” Coast Guard. Threatened by this attack on U.S. autonomy, Senator James Inhofe of Oklahoma immediately stepped in to help stop U.S. ratification of the Law of the Sea treaty, asserting national security concerns.

Sovereignty International’s Henry Lamb is the linchpin for all things Wise Use and Agenda 21. He is ex-vice president of the Land Improvement Contractors Association and former head of the Environmental Conservation Organization—an umbrella group for over 300 smaller Wise Use organizations founded by developers to oppose wetlands protection. He also worked to defeat the UN Convention on Biodiversity from ratification in the U.S., founded Freedom 21 with members of ranching groups to organize anti-Agenda 21 conferences, and writes the occasional article for WND(formerly World Net Daily) on how Agenda 21 is not merely a conspiracy theory but an actuality happening right before our very eyes. He also appears in Tom Deweese’s anti-Agenda 21 planning toolkit, and Deweese sits on the advisory council of Sovereignty International.

Both Deweese and Lamb appear at property rights conferences funded by the same resource industry-funded think tanks from the Wise Use era: the Heritage Foundation, the Heartland Institute, and the John Birch Society. The speakers at these conferences are often the same stellar names found within the Wise Use movement—e.g., Michael Coffman and Dan Byfield of Stewards of the Range (a group created by the son of Wayne Hage)—but also include those dedicated to the anti-Agenda 21 movement, like Rosa Koire, Orlean Koehle, and Michael Shaw. Those same think tanks, along with right-wing legislation mills like the American Legislative Exchange Council (ALEC) provide boilerplate legal documents that municipalities can use to ban sustainable development and any environmental restrictions on land use.

Together, they have found a common ground—property rights—with which to rail against the government....

===

rep

mented:

In the seventies, this dissent against government control of public lands led a number of ranching groups to form the Sagebrush Rebels. The Sagebrush Rebels were allied to fight the implementation of the growing environmental movement who had won numerous legislative victories in the late sixties and seventies: the Wilderness Act, Roadless Area Review and Evaluation Act (RARE), National Environmental Policy Act (NEPA), Federal Land Policy and Management Act, and National Forest Management Act. These policies were put in place to restrict access to government-owned lands and resources that were being used for free or for far below market value while being maintained by the government. The Sagebrush Rebel alliance was able to push their pro-ranching, logging, and mining agenda into the White House with the election of Ronald Reagan in 1980.

The story of Wayne Hage is the prototypical example of this battle over government land regulation. A public lands rancher, he grazed his cattle on government-owned lands until the government blocked access to a water source used to feed his cattle. Hage sued the government under takings law for their restriction and eventually won. His twenty-plus-year legal struggle won him $14 million in damages plus interest, and he became a late symbol of the Sagebrush Rebellion and ranchers’ rights.

The tactics of Wise Use are thoroughly documented in David Helvarg’s groundbreaking book The Battle Over the Greens. In it, Helvarg details the same ideology and tactics at the heart of the Tea Party and anti-Agenda 21 movements to come. In many ways, these later groups are merely an extension of Wise Use being led and reinforced by the some of the same actors. It is the same technique of strategic fearmongering at the local level for private interests. Or as Helvarg explains, “the strength of anti-environmentalism is not in its membership rolls but in its ability to mobilize a network of core activists to intervene in and politicize local conflicts, creating a perception of power that they hope can be used as a springboard for further expansion.”

Long before the Tea Party accused Obama of being an “Alinsky radical,” groups like Bill Grannell’s People for the West!, Charles Cushman’s National Inholder’s Association, and Ron Arnold’s Center For the Defense of Free Enterprise used the techniques of Saul Alinsky to blame the preservationist elite for the ills of rural Montana. Bill Grannell even took Alinsky’s classes in Chicago before going on to use Alinsky’s tactics for the interests of ranching groups. Instigating instant riots at town meetings, spamming government fax lines, phone lines, and talk radio call-in shows, and threatening a UN takeover of all private property were some of the common tricks of the trade.

The Paranoid Style in American Politics

As it turns out, Environmental Perspectives is the brainchild of Dr. Michael Coffman. Although Coffman does not specifically work on Agenda 21, he does preach a Larouchian worldview that takes aim at international paganism, claiming that climate change is a hoax used to bring forth a biblical end times. With a background in forestry and previous work as a representative for the paper industry, he offers what he calls a Judeo-Christian stewardship of the environment that integrates free markets, private property rights, and traditional values, but mainly encourages industry to use as many resources as they want.

Coffman is also executive director of Sovereignty International, the organization founded in 1996 by Henry Lamb (with members of the National Federal Lands Conference and the cattle industry) that is dedicated to fighting global governance. Almost immediately after being created, Sovereignty International used their newfound existence to claim that the UN was looking to establish an international “blue hull” Coast Guard. Threatened by this attack on U.S. autonomy, Senator James Inhofe of Oklahoma immediately stepped in to help stop U.S. ratification of the Law of the Sea treaty, asserting national security concerns.

Together, they have found a common ground—property rights—with which to rail against the government....

===

Document Data

Filename: Oliver Houck Yale Law Rev 1994.pdf

Type: PDF Document

Date Archived: 2011-09-18 13:56:32

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