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shows that again. And no discussion of Utah's property rights would be complete without mention of water rights.

You noted the growing distance between Americans and the Government. Some 60 percent or more of the American people believe-well, that they are afraid of their government. And you think one of the reasons is what is happening in this takings area. It seems to me that all our people want in this country is a chance for a fair fight when they disagree with the Government. Do you see this

bill providing and giving them that chance? Mr. THOMPSON. Yeah, I certainly do. I think the bill really helps—I think it helps in three areas it helps in several—but three important areas. One, is it requires the agency is gonna treat the property rights, to look at alternatives that don't require that.

Secondly, it requires if in fact they're gonna do it, that the burden is spread broadly and comes out of their own budget. So they are gonna have to think of that.

And the third issue is, if they're gonna go on people's private property, particularly for these studies and environmental regulations, that they have to notify and maintain consent. I think that starts leveling the playing field, and then of course we solve the other issues.

I personally don't think that long-term any government is well served that requires ordinary people to have to hire lawyers to sue their government. I think we need to find ways that allow people to do business and to respect the process, like one of the problems in the last 20 years is that we've really lost that respect for the process. It's too complicated, people don't understand it, it requires too many kinds of experts to deal with the problem and it takes far too long to resolve the problem.

The CHAIRMAN. Returning to the question of water rights. How big a problem is it for the people of Washington County when the Government threatens to reduce water rights?

Mr. THOMPSON. Well, it's—we're, of course, Utah's the second driest State in the Nation, and Washington County's the driest county in Utah. So in our area, which is one of the fastest growing counties, that's an extremely serious problem. Our economy could be devastated by how we ultimately resolve these issues.

And frankly, it is very frustrating as you take the environmental regulations where they want to come in and simply take water, and the West which has been seen as a property right and used as a property right without any compensation, or without a recognition of what impact it has on the collateral value of real properties. As was once said, when you get in the West, it's the water that has the value. Land without water is essentially worthless in the West.

The CHAIRMAN. How would you expect this bill to help you solve those water right problems?

Mr. THOMPSON. First, it recognizes that water right, I think, is a property right. Secondly, it recognizes that property has to have the ability to transport the water to the property to have a value. So it starts protecting the underlying easements and transmission facilities that often in the West cross or are impacted by the Federal regulations. It recognizes that there's a value that goes to the property by having these easement facilities.

The CHAIRMAN. Well, I appreciate that.

I'd also like to thank you, Professor Wilkins, for being with us here today. I think you've done an excellent job of summarizing exactly why we need legislation to protect property rights in general, and S. 605 in particular.

I believe that this bill merely reinforces—actually not reinforces—just enforces the fifth amendment by restoring balance and fairness to the property rights versus regulation analysis. However, some people have claimed that this bill is not just protecting the constitutional rights, but expanding them.

Do you believe that this hill creates any rights beyond what the drafters of the Bill of Rights mentioned?

Mr. WILKINS. Certainly not. I think it essentially makes the fifth amendment enforceable in the context of the modern regulatory state. One of the things that has happened in this century, is government has found out that they can do all kinds of things essentially cost free, by shifting the bulk of the cost over onto the shoulders of individual property owners.

And the Supreme court, I think, for institutional reasons has been very, very slow to come up with effective constitutional remedies here. Because, you know, when you are faced with a need to protect the desert tortoise, and many, many people believe, as I do, that, you know, we should protect endangered species. There are some important public values that are effectuated by such protection. But the Supreme Court has been left with a rather stark choice of either saying to the property owner, you get no money; or government, you have behaved unconstitutionally,

That's why I think this is a classic example, you know, I would analogize it to congressional decisions under the fourteenth amendment implementing civil rights. It has certainly been appropriate for Congress to provide legislative remedies to enforce the fourteenth amendment rights, in fact that's accepted as common place today.

I think all that is happening here is Congress in an analogous way is providing an enforcement and a remedial mechanism to enforce constitutional rights that the court has simply been unable to protect.

CHAIRMAN. Well, a lot of people don't realize that the court only can decide the cases and the factual situations that are brought to it. Then they decide according to the major rule of statutory construction, in the most narrow way they possibly can.

Mr. WILKINS. Exactly.

The CHAIRMAN. So we're limited to case-by-case resolution of these difficulties which could take decades.

Mr. WILKINS. And it hasn't been resolved yet. I wrote a law review article after being involved in a very unfortunate case where essentially because the governmental unit wanted a scenic easement across some property, property that was worth $26 million, suddenly was worth several thousand dollars. And in any realistic sense, the people of this governmental entity had simply condemned the scenic easement, and they got it for free.

And when we finally got to the Supreme Court it got four descending justices or three descents on the denial of certiorari. The fact of the matter is, the court has simply been unable to protect these kinds of interests. And the Founding Fathers, I believe, would have clearly intended these kinds of interests to be protected when they wrote the amendment.

The CHAIRMAN. Oh, yes. That's another issue with the courts. The court's sitting on certiorari I might get as many as 150 to 1,500 cases or petitions for certiorari, I'm only able to choose a very small number of those to begin with. And if the case didn't catch their imagination, at least the imagination of the forum, you're in real trouble on certiorari.

Mr. WILKINS. And this is an area where the court has been unable to come up with stable majority so they avoid these kinds of cases to begin with.

The CHAIRMAN. That's interesting. You noted that this bill provides clarity in a very murky field of law. And I agree. Could you expound for just a moment on how that clarity will help people to protect their property rights should this bill be enacted.

Mr. WILKINS. It's a tremendous help, because right now with the law is it currently stands, all you have is these rather broad dicta. Government can't go “too far.” You can't put burdens on individual shoulders that the public should bear. An individual property owner faced with that state of the law has such vast uncertainty, the only thing left they have to do is hire a very expensive lawyer and commit yourself to years and years of litigation.

The Government, on the other hand, has tremendous leverage to say accept this little pittance we're throwing your way, because by the way, haven't you read Justice Steven's descent in Lucas where he said, so long as you can picnic on your property, you haven't lost it.

And so there is a lot of governmental leverage against the private property owner, vast uncertainty facing the private litigant, and because of that, simple laws of economics are that the poor property owner cannot protect his or her interest.

With this clear rule, what it would come down to is you would go get your appraiser, the Government-and I think it helpfully provides that the Government has the burden of demonstrating that it doesn't diminish the value by 33 percent. When you have that clear line, all of a sudden property owners have some economic muscle behind them, the law is clear.

I think there will be a lot of quibbling over whether the line should be 10 percent, 15 percent, 25 percent, 33 percent. And I think that's essentially a legislative policy decision. But whatever line the U.S. Congress finally adopts, it will finally put some teeth into that old 1922 decision.

The CHAIRMAN. As I've said many times, the strong protection of property rights works in harmony with protecting the environment. And I refer specifically to the exception for compensation where the Government is preventing a nuisance.

Mr. WILKINS. Exactly.

The CHAIRMAN. Would you discuss for us here today how a nuisance relates to the—the law of nuisance relates to the interaction of property rights and of course environmental protection.

Mr. WILKINS. Well, it has been a fundamental of American property law since the days of the Founding Fathers, that private right of property was always subjected to the greater public good in cer


tain circumstances. And this was recognized in common law of nuisance that goes clear back to preconstitutional days.

And the U.S. Supreme Court has recognized in its most recent decisions that the law of nuisance is implicit in property right. What that essentially means is you don't owe you don't have the right as a property owner to use your property in such a way that it constitutes a legal nuisance to the community.

Now, what constitutes a legal nuisance is a much narrower definition. I believe that many government regulators would want-I would guess that you would have a lot of government regulators that would want a very, very broad definition of nuisance. I think that you have to adhere rather closely to the old common law definition of noxious use.

But essentially if you can show that property owners are using their property in such a way that it does constitute a noxious use, then government can prohibit that noxious use without cost. It is when you go beyond noxious uses to securing positive benefits for the community, such as protection of turtles and acquisition of scenic easements, and all the other kinds of things we try to do by regulation. It is when you try to obtain those positive public benefits that this test will kick in and require that the public pay for those benefits.

The CHAIRMAN. Well, on the 33 percent line amount for partial takings, that arose out of a—that was a result of a number of discussions with various economists in the congressional budget office. It was believed that if we set the amount at less than 33 percent, that this would act as a disincentive for agencies to settle lawsuits.

Mr. WILKINS. May well be.

The CHAIRMAN. And they would just litigate forever because the Government has more power to litigate than the average citizen, or any citizen, for that matter. Setting it above 33 percent would be unfair to property owners. So we chose, you know, 33 percent is a pragmatic compromise. Personally I would like it to be a little lower than 33 percent. But right now most people who look at it say it is probably a good bright line to start with.

Mr. WILKINS. I think it is a pretty good bright line. In fact Ithe clients—you know, I'm a law professor so I do not represent clients very often. But a couple of big cases, because I am a constitutional lawyer, and written in this area, I've been contacted by people in some big cases. And I'll tell you, the property owners in those big cases would have been vastly relieved.

What usually happens, from my experience, is you will take a piece of property that may be worth $10 million-and just drawing hypothetical numbers out of the air-and as a result of government regulation, that $10 million piece of property is suddenly worth $80,000 or $90,000. You are seeing diminishment in the range of 95 to 98 percent. And the courts are simply turning their backs and saying that doesn't go “too far.” So anybody in that situation will be very relieved with the 33 percent line.

The CHAIRMAN. Well, I want to personally thank all six of you who have testified here today. It has been terrific to have you here. I know it has been a real inconvenience for you, but I think over the long run these type of hearings are what helps bring about change back there.

Now, this is a major change. The Supreme Court has not been willing to definitively resolve the problems and conflicts in this area. They tinkered at the edges, I agree with you, Professor Wilkins, some of the cases are very interesting and they've held out a lot of hope. As bad as the Lucas case was, it still held out some hope because at least it came part of the way, but a very, very limited part of the way.

And it's time to really have the national legislature resolve these problems because people are being torn a part by these problems only for their country. And as you can see, our three witnesses who have preceded you today, and some that you have mentioned here who have had great difficulties, really have not been treated fairly, and it is time to change that.

Now, there are many in the audience who wish to submit testimony. If there are, if you want to, anybody in the audience or anyone else, for that matter. We will keep the record open for 10 days and we would like you to mail your testimony. And we would love to have other illustrations to use for our callings back there. We have plenty of them, but we could use plenty more.

Send them to the Senate Judiciary Committee, 224 Dirksen Office Building-Senate Judiciary Committee, 224 Dirksen Office Building; Washington, DC 20210.

And I have to say, as chairman of the U.S. Senate Judiciary Committee, we are very, very concerned about this. And I think it is about time the Senate Judiciary Committee has been concerned about these issues. Because, you know, I hear all these arguments when have Supreme Court nominations about the unenumerated rights that come out of emanations and penumbras, to borrow some of the Supreme Court language. These we are talking about are enumerated in the Constitution, they are there explicitly, and yet still the American people are not being treated fairly in many instances across the country.

So your testimony really has been important here today. We have made a record that I think is unparalleled and very important, and hopefully we can pass this bill, which would be of great benefit to our society and to everybody who believes in the right to own property, which is what has really driven the American dream through all of these last 200 years.

So this is an important hearing, for those of you who are not used to this, this is a hearing involving some of the most important principles of constitutional law that we have, and you're participating in it, and I for one want to express my gratitude to all of you who have come of interest or because you are suffering or because you just plain want to know more about what's going on in Washington and here.

I just want to thank you all, and with that we'll recess the Judiciary Committee until further notice. Thank you.

(Whereupon, at 11:15 a.m., the committee adjourned.)


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