firebreak could make him subject to "both State and Federal prosecution."1 In the subsequent fires, 29 homes in Riverside County burned to the ground.

Interior Secretary Bruce Babbitt, at times, has been forthright in declaring the broad scope of property regulation under current environmental law. In a 1993 speech before the Society of Environmental Journalists, the Secretary sought to explain the proliferation of ESA horror stories thusly: "when a species is listed, there is a freeze across all of its habitat for two to three years while we construct a habitat conservation plan which will later free up the land."2 Whether the land is eventually freed up or not, productive use of lands declared to be habitat for endangered species is halted under the ESA, whether such actions could harm the public's purported interest in wildlife or not. In this manner, the federal government effectively condemns an easement across private land to create a wildlife refuge, albeit temporarily in some instances, without paying just compensation.

This policy cannot but have significant effect on property owners around the nation. According to the General Accounting Office, over 75 percent of those species currently listed under the ESA rely upon private land for some or all of their habitat.3 In the case of wetlands, approximately three-fourths of the lands that meet the federal government's definition are on private land. Thus, as long as the federal government continues to rely upon regulation to conserve these resources, conflicts with private landowners are inevitable. Indeed, even staunch opponents of takings compensation, such as the National Wildlife Federation, have implicitly acknowledged this fact, calling for reforms that make environmental laws "more workable for private landowners."4 The Clinton administration has also marginally altered the application of these laws so as to blunt their impact on private parties, particularly small landowners. If current environmental laws did not impinge upon the rights of landowners, such improvements would not be necessary.

Think of what the government is doing in another manner. Under current law, it is illegal to harm a homeless person, as it should be. However, property owners are not required to cede their homes or backyards in order to provide homeless shelters. If a homeless person finds his or her way onto an individual's private property, the owner does not have to forfeit use of that property and let that homeless person remain. Should the government wish to turn an individual's property into a homeless shelter, then it would have to compensate the owner. However, should endangered wildlife settle on someone's property, then the situation is entirely different. Under the Endangered Species Act, as recently upheld by the Supreme Court in Babbitt v. Sweet Home, the landowner can be forced to give up use of the land to provide species habitat, and no compensation is paid. Few but the most ardent environmentalists can view this situation as just.

Under present law, public costs that should be borne by all are foisted upon those landowners unfortunate enough to own the exact parcels of land that the government covets for environmental purposes. Irrespective of whether federal courts currently hold such actions to be Constitutional without compensation, they are neither fair nor just. It is imperative that Congress restore protections for private property that the Courts have failed to consistently uphold.

PUBLIC GOODS VS. PRIVATE COSTS

If the protection of property rights entailed compensating landowners each and every time a government action conceivably impacted the value of their lands, environmental and budgetary concerns would be justified. Under such a scenario, it would certainly be possible for a corporation to demand compensation when prevented from injecting toxins into neighboring groundwater, fouling the air of a local community, or creating an imminent and identifiable threat to nearby land owners. However, this is not what protecting private property rights is about, nor is it an accurate description of S. 605.

Indeed, the current controversy over property rights is not about government pollution control efforts or federal protection of public health and safety. The many thousands of groups and individuals that make up the property rights movement are not rebelling against government attempts to protect their neighbors. They are rebelling against federal government regulations, largely environmental, that re

1 Copies of these letters and additional FWS correspondence are contained in Ike C. Sugg, "Rats, Lies, and the GAO," Competitive Enterprise Institute, August 1994.

2 This speech was published as Bruce Babbitt, "The Triumph of the Blind Texas Salamander and Other Tales from the Endangered Species Act," E Magazine, March/April 1994.

U.S. General Accounting Office, Endangered Species Act: Information on Species Protection

on Nonfederal Lands, GAO/RCED-95-16 (December 20,1994).

4 National Wildlife Federation, "The Endangered Species Act: Finding Common Ground," October 1994.

strict the reasonable use of private land, such as building homes and planting crops. Most "takings" cases arise not when public health is at risk, but when the rights of landowners are suppressed by the federal government for non-essential purposes. Groups opposing compensation for regulatory takings typically argue that federal environmental laws do not take private land, and that requiring compensation for regulatory takings would impose an extreme financial burden upon the federal government. These two arguments are contradictory, and takings opponents cannot have it both ways. Either property rights are not being violated, and a takings compensation requirement would be a superfluous enactment, or violations are rampant, and substantial amounts would have to be paid in compensation. Only one of these arguments can be true.

The administration has implicitly acknowledged that the latter is more likely to be the case. In a June 7 letter to Senate Judiciary Committee Chairman Orrin Hatch, White House Office of Management and Budget director Alice Rivlin claimed that the bill before this committee, S. 605 would be tremendously expensive, surpassing the $28 billion price tag placed on the House bill, H.R. 925. For the federal government to be exposed to such financial claims, federal regulations must be infringing upon the rights of landowners on an unprecedented scale. How else could it be exposed to such exorbitant liability?

Either way, arguments over the potential cost of a takings compensation requirement obscure the more fundamental issue. Land-use regulations inevitably entail costs. The real issue is who should bear those costs. As James Huffman, Dean of the Northwestern School of Law at Lewis and Clark College notes:

The pervasive notion that society can avoid the costs of public action if government can avoid compensating for property affected is simple self-deception. The costs of government action will be borne by someone. The compensation requirement, like a rule of liability, simply determines who that someone is. * * *5

Under current policy, "public goods" such as military bases and highways are created by purchasing lands from private owners. On the other hand, "public goods" like wetland preserves and wildlife refuges are created by bureaucratic edicts that deny property owners the use of their land. This is not how it should be. If the public wants to protect the habitat of an endangered species or preserve an ancient stand of trees for some aesthetic, spiritual, or broad "environmental" value, then the public should be willing to pay for it, just as it pays for other "public goods." The costs should not be imposed on whoever is unfortunate enough to hold title to a coveted piece of land.

WHAT LOSSES ARE COMPENSABLE

As the Supreme Court held in Armstrong v. United States, the Constitutional prohibition on uncompensated takings "was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Similarly, in the recent case of Whimsy Benefits v. United States, a successfully litigated takings claim against the federal government, the U.S. Claims Court reminded us that:

If the Fifth Amendment is to have any force, courts must determine when and whether government's actions destroy the rights in property that are an essential component of ordered liberty.

S. 605, on the whole, embodies this philosophy and seeks to clarify Congress' opinion as to how federal courts should make these determinations.

S. 605's greatest defect with regard to compensation is its monetary threshold. Just as it should not matter under what statute a regulatory taking occurs, it should also not matter how much a landowner suffers economically as a result. The issue before a court or administrative agency should simply be whether a property right has been taken. When such a taking occurs, compensation should be paid, no matter how large or small. By the same token, when the government uses its legitimate authority to prevent a landowner from harming another, it matters not if that landowner is left destitute.

James Huffman, "Avoiding the Takings Clause through the Myth of Public Rights: The Public Trust Doctrine and Reserved Rights Doctrine at Work," Journal of Land Use and Environnmental Law, Fall 1987, p. 173 n9.

6364 U.S. 40, 49 (1960).

7 Whitney Benefits, Inc. v. U.S. 18 Cl. Ct. 394, 399 (1989).

Regrettably, in many instances S. 605 does not require compensation if the property owner does not suffer an economic loss greater than 33 percent of the affected portion of the regulated property's value. This is unjust, for a taking is a taking. Whether a landowner is sufficiently harmed is not the issue. Whether a landowner's right to her property has been violated by the federal government is. It is that simple.

This point was made by the Supreme Court with regard to takings resulting from physical occupations in the case of Loretto v. Teleprompter Manhattan CATC Corp.8 In that case the Supreme Court ruled that even occupations that impose "minimal" hardships were compensable takings. Essentially the Court held that the extent of the imposition is immaterial to the question of whether a taking occurred. If this is the case with physical takings, it should be with regulatory takings as well. The current takings compensation proposal falls short of this standard. S. 605 certainly would offer potential relief to many property owners that would not be likely to receive compensation in court today, but due to the 33 percent threshold, it does not go far enough. S. 605 would be a fairer and more equitable proposal were it to adopt a de minimis standard or supplement the 33 percent threshold with a monetary one. Under S. 605, the owner of a $100,000 parcel that is devalued by "only" $30,000 could receive nothing, no matter what hardship the devaluation causes. As Justice John Paul Stevens has noted (albeit with differing intent), making a distinction as to who is entitled to compensation based on the amount of the devaluation is "wholly arbitrary. "9 This rule is the equivalent of saying that a burglar has not committed a crime if he "only" takes one third of the money in your wallet and leaves the rest. In S. 605, Section 203 (3)(A), "just compensation" is defined as "compensation equal to the full extent of a property owner's loss ***" Apparently this does not include those who do not suffer enough of an economic devaluation.

However, it is to bill author(s)' credit that the 33 percent threshold applies to the affected portion of the regulated property, and not the property as a whole. This rightly expands-the range of government actions that are potentially compensable. It should also be noted that the Lucas majority felt that it was "unclear" whether the Court should focus on a regulation's impact on a whole tract or merely the affected portion.10 S. 605 thus has the virtue of clarifying this issue for the court and potential litigants (an important point to consider for those who allege that S. 605 is too vague as to what it would require and allow).

WHEN COMPENSATION IS DUE

Many have charged that compensation proposals, such as S. 605, would require the federal government to pay compensation "whenever" federal regulatory actions diminish property values.11 Were this true, it is likely that all but the most extreme libertarian ideologues would balk at supporting such a bill, for there is little that the government can do, from raising interest rates to constructing a highway, that will not impact property values in some manner. As the Supreme Court has held fairly consistently "mere diminution in the value of a property, however serious, is insufficient to demonstrate a taking." 12 It is a mark in this bill's favor that it rejects a compensation standard that is wholly dependent upon the monetary impact of federal regulatory actions.

Compensation should be paid when the federal government acts so as to deprive a property owner of a right to use and enjoy that property. As already noted, property rights, properly understood, do not include the right to injure or harm the person or property of another. This is the basis of the common law principle that one should not use his own property so as to injure that of another. 18 This means that when the government limits or prohibits the use of property in a manner that is likely to harm another person or property, it has not deprived the owner of a property right. However, should the government limit the use of property for some other purpose, such as the provision of wildlife habitat or some other "public good," compensation should be paid. The difference is the nature of the government action in

8102 S. Ct. 3164 (1982).

9 Justice Stevens, dissenting, Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2919 (1992).

10 Lucas, p. 2894 n 7.

11 See, for example, "Earth to Congress" (editorial) The New Republic, May 8, 1995.

12 Concrete Pipe and Products of California v. Construction Laborers Pension Trust, 113 S. Ct. 2264, 2291 (1993).

13 The maxim is Sic utere tuo ut alienum non laedas, "one is so to use his own as not to injure another's property."

question. This should determine whether or not compensation is due, not the level of devaluation experienced by the landowner.

Section 204 (d)(1) of S. 605 explicitly spells out a "nuisance exception" to the payment of compensation by the federal government:

No compensation shall be required by this Act if the owner's use or proposed use of the property is a nuisance as commonly understood and defined by background principles of nuisance and property law as understood within the State in which the property is situated *** **

This language is clearly modeled on the language of the Supreme Court's majority opinion in Lucas v. South Carolina Coastal Council, in which the Court held:

[T]he question must turn, in accord with this Court's "takings" jurisprudence, on citizens' historic understandings regarding the content of, and the State's power over, the 'bundle of rights that they acquire when they take title to property. Because it is not consistent with the historical compact embodied in the Takings Clause that title to real estate is held subject to the State's subsequent decision to eliminate all economically beneficial use, a regulation having that effect cannot be newly decreed and sustained, without compensation's being paid the owner. However, no compensation is owed-in this setting as with all takings claims-if the State's affirmative decree simply makes explicit what already inheres in the title itself in the restrictions that background_principles of the State's law of property and nuisance already place upon land ownership. (Emphasis added) 14

The primary difference between S. 605 and Supreme Court precedents is not the character of the government actions that can trigger compensation. Rather, S. 605 seeks to make explicit that less-than total takings are still worthy of compensation, provided that they amount to more than 33 percent of the affected property's value, or otherwise fail to meet the standards set forth in S. 605. Moreover, the Lucas majority explicitly left open the possibility that those who have suffered less than total economic deprivations could be entitled to compensation.15 Thus it is hard to argue, as the Clinton Administration and others have, that S. 605 represents a "radical departure from the Constitution" 16 without similarly impugning Supreme Court jurisprudence on this subject. [It should also be stressed that S. 605 merely seeks to define a statutory right to compensation, and thus supplement, not redefine, Supreme Court jurisprudence.]

The reason for the emphasis on nuisance law is clear: There is a meaningful distinction between government exercises of the police power to protect individuals, their properties, and the public at large from a threat posed by the actions of an individual landowner, and government flats that otherwise control the use of private property. This is a distinction that has long been a part of Constitutional jurisprudence, and is one that is properly included in any proper takings compensation proposal.

IS THE NUISANCE EXCEPTION SUFFICIENT?

Much of the more substantive criticism of S. 605 has challenged whether its nuisance exception sufficiently distinguishes between those government actions for which compensation should be required and those for which it should not. Joseph Sax, Counselor to the Secretary of the Interior and Deputy Assistant Interior Secretary for Policy acknowledges that "Compensation bills contain narrow exemptions which would avoid a duty to compensate if the regulated use constitutes à nuisance," but argues that such an exception “fails to recognize that there are many important public interests that are not related to health and safety ****17 Sax submitted à memo to the House Resources Committee Private Property Rights Task Force Prepared by Interior Department personnel that seeks to demonstrate this

case.

18

To gauge the likely impact of the nuisance exception on takings compensation claims, it is useful to look at the Lucas court's understanding of the issue, as the language in S. 605 is based upon this decision. The court gave examples of the sorts

14 Lucas, p. 2888.

15 Lucas, 2895n8.

16 This charge has been made by, among others, Joseph Sax, Counselor to the Secretary of the Interior and Deputy Assistant Secretary for Policy. See Sax, Statement before the Private Property Rights Task Force, House Resources Committee, May 17, 1995.

17 Sax.

18 Memo on the Nuisance Exceptions in H.R. 925 and S. 605, United States Department of the Interior, May 1, 1995.

of regulations it would uphold, without requiring compensation, under the nuisance exception:

On this analysis, the owner of a lake bed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits aside an earthquake fault. Such regulatory action may well have the effect of eliminating the land's only productive use, but it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles. 19

A cursory historical review of recent cases also provides numerous examples of the sorts of activities, such as water pollution caused by a paper mill, landfill seepage that contaminated groundwater, and even air pollution, that have been declared common law nuisances in court.20 Thus, it seems reasonable to conclude that the nuisance exception is likely to achieve its intended purpose: to prevent compensation in those cases where the regulated or prohibited activity is likely to cause harm to other individuals or their properties, and to allow for compensation in those other instances in which the federal government has regulated proposed land-uses. It may not be perfect, but perfection is not the standard for federal legislation. If it were, the entire U.S. Code would fit in a letter-size envelope.

Critics charge that the nuisance exception will be insufficient because courts often rule against plaintiffs that claim to have suffered nuisances inflicted by their neighbors. In those cases where courts have looked unfavorably upon plausible nuisance claims it is often for one of two reasons: (a) failure to demonstrate harm or sufficient likelihood of harm, or (b) federal law has preempted nuisance actions. These are hardly reasons to reject the appropriateness of a nuisance standard to determine whether compensation is due for regulatory takings. If a plaintiff would not be able to demonstrate a sufficient likelihood of harm, what then is the purpose of the regulation other than to control land-use or economic activity? The fact is that courts have upheld common law claims against a wide range of nuisances, and there is every reason to believe that they will continue to do so.

In the case of statutory preemption, it is unreasonable to oppose compensating individuals who have been adversely affected by federal regulation merely because the federal government has, in other instances, preempted traditional common law causes of actions against nuisances. There are certainly cases where federal law has preempted common law claims, in some cases to the detriment of property owners and true environmental protection. For instance, the Federal Aviation Administration has certainly preempted nuisance claims by landowners near airports that object to excessive noise. The proper policy response in these instances is to restore the common law causes of action, by removing or modifying the preempting regulation or statute, not to oppose other efforts to allow individual property owners to seek justice administratively or in federal courts.

When those arguing against S. 605 are not claiming the nuisance exception is too narrow, they are claiming it is too broad and vague. The Interior Department memo makes both claims, in the latter instance protesting that the bill poses "the vague and open-ended question: What is the scope of the phrase 'a nuisance as commonly understood and defined by background principles of nuisance and property law?" The memo argues that S. 605 provides insufficient guidance in determining what sorts of activities qualify as nuisances. Yet since S. 605 merely incorporates the Lucas language on nuisance, this is as much a criticism of the Supreme Court as it is of S. 605. Here as elsewhere, opponents of S. 605 cannot have it both ways; they cannot appeal to the jurisprudential tradition that produced Lucas while simultaneously disparaging Lucas' nuisance exception as “vague and open-ended.”

Were the administration truly concerned about the "vague and open-ended" nature of Lucas' nuisance exception, one would expect to see some sort of proposal to reduce uncertainty and establish a true "bright-line test" for takings cases. As the administration has not forwarded any such proposal, and has instead opposed every property rights protection proposal that has been introduced in the past two years, it is hard to take the claim seriously. Indeed, it seems that opponents of takings compensation are not opposing S. 605's handling of the nuisance issue so much as they are objecting to the idea that the federal government could ever be required

19 Lucas, 2900.

20 Several of these cases are summarized in Roger E. Meiners, "Elements of Property Rights: The Common Law Alternative," in Land Rights, B.Yandle, ed. (Lahham, MD: Rowman and Littlefield, 1995).