this land is my land

The recent court decision didn't make the front fapes of the nation's newspapers. It didn't rate mention on the evening newscasts. But it could, ultimately, have the same impact on property rights in the United States that, say, Brown vs. Board of Education had on school desegregation.

The precedent-setting case involved 275 San Joaquin Valley, CA farmers whose water was taken from them by the US Fish and Wildlife Service a decade ago to accomodate two fish on the federal endangered species list- the chinook salmon and the delta smelt....

...But they(supreme court justices) likely would agree with Judge Wiese that private property owners are entitled to compensation when government regulations restricts the reasonable use of their property.

Mr. Perkins continues:

In 1998 the Tulare Lake Basin Water Storage District and Kern County Water agency sued the federal gov't on behalf of the aggrieved farmers, to whom they deliver so many acre-feet of water.

The water districts maintained that the gov'ts order that they curtail water deliveries to their farming customers amounted to a regulatory "taking" of th e farmers' rightful property.

Three years ago, Judge John Paul Wiese of the US Court of Federal Claims ruled that the gov't owed the 275 farmers for their water losses. This past New Year's Eve, he set the amount of damages at $14 million plus interest( a momentous judgement that received little notice until a few weeks ago)

Alf W Brandt, the Interior Dept lawyer who argued the gov'ts case, says that, in the wake of Judge Wiese's decision, "There may be implications for how the Endangered Species Act is implemented."

Indeed, no longer can gove't regulators take private property- be it water or, presumably, land- to protect this snail darter or that spotted owl with no consideration whatsoever for the economic loss that may be suffered by private property owners.

If the government feels that a species is so endangered that it needs to take a farmer's water, that it needs to deprive a landowner of full economic use of his or her land, then the gov't ought to pay the farmer, the landowner for the loss.

After all, the Fifth Amendment state that private property shall not be "taken for the public use, without just compensation."

Environmental activists insist that the 5th's "takings" clause applies only to property that has been physically taken from a private property owner.

However, in recent decades, the US supreme court has ruled on several occasions that the takings clause also applies when gov't regulation leaves property in private hands while restricting (or forbidding) use of the property.

In 1987, the high court went so far as to liken a state use of regulation to "extortion" in Nollan vs. California Coastal Commission.

Five years later, the justices issued a landmark ruling in Lucas vs South Carolina Coastal Council, declaring that "when the owner of a real property has been called upon to sacrifice all economically beneficial uses in the name of the common good," he or she must be paid for the regulatory taking.

In a 1994 case, Dola vs City of Tigard, the high court stated that "we see no reason why the takings clause of the 5th Amendment, as much a part of the BOR as the 1st or the 4th, should be relegated to the status of poor relation."

In Palazzolo vs. Rhode Island, a 2001 case, the justices held that, even though a property owner acquired title to land after certain restricitve environmental regulations took effect, that did not negate his takings claim.

Otherwise, the majority declared, "A state would be allowed, in effect, to put an expiration date on the takings clause."

It remains to be seen whether the Justice Dept will appeal Judge Wiese's recent decision.

If it does, the supreme court might get its ripest opportunity yet to resolve the long-running conflict between environmental regulation and private property rights.

The justices almost certainly would affirm the gove'ts authority to regulate the use of private property- for the protection of endangered species or some other common good.

But they likely would agree with Judge Wiese that private property owners are entitled to compensation when government regulation restricts the reasonable use of their property.

this has been read to the audience by teeman via electronic bulletin board.

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