September 1, 2005
By Edwin Meese III
Despite current hype from Senate Democrats, the landmark cases
of the next five years probably won't concern civil rights,
abortion or other issues that have liberals so worked up. Current
court vote-counts leave little room for major shifts, no matter
what the judicial philosophy of Justice Sandra Day O'Connor's
replacement. Instead, I believe some of the biggest cases will deal
with property rights.
A confirmed Justice John Roberts may well find waiting on his desk
one property-rights case potentially as momentous as the
unfortunately decided Kelo v. City of New London. In Kelo the court
gave government the right to take property from one private citizen
or company and give it to another. In this anticipated case -- The
Stearns Company, Ltd. v. United States -- the lower courts have
overturned centuries of precedent, demonstrating that, when it
comes to protecting private property, in Ronald Reagan's favorite
maxim, government isn't the answer; it's the problem.
Stearns concerns one of the most ancient principles in property
law, that ownership includes an absolute right of access (what the
law calls an "easement") and lawful use. In 1937, a Kentucky family
-- owners of the Stearns company -- sold a tract of land, now part
of the Daniel Boone National Forest, to the federal government.
They kept the right, subject to environmental restraints, to mine
the coal underneath, and the easement.
In the late 1970s, Congress banned any mining in national forests,
with two exceptions: where property rights already existed and, if
they did not exist, where the secretary of the interior said mines
could operate anyway. When regulations were issued, technicalities
excluded Stearns from claiming so-called "valid existing [property]
rights." The bureaucrats told the company to ask for permission. To
protect its property rights, the company sued.
The case took two decades going through the courts. Three years ago
the Court of Federal Claims ruled that the government's actions
constituted a taking of private property for public purposes -- and
the Constitution required the property owner to be compensated. The
court said that, even if permission were granted, an Interior
"sign-off" was no property right. "The fact that an act of
governmental grace or benefit may have returned. . . the
plaintiff's right to mine does not alter the denial of [property]
rights." Last year, a three-judge panel of the Court of Appeals for
the Federal Circuit in Washington, D.C. reversed the Court of
Claims, a decision the full Federal Circuit Court upheld in April.
In the next few weeks, the Supreme Court must decide whether or not
to review that decision.
Few constitutional protections are less ambiguous than the
requirement that private property must not be taken for public use
"without just compensation." It is rooted in common law and is
almost as ancient as common law itself. To guard against abuse, the
Framers made these principles explicit, matching the government's
blunt power to compel sale of private property with an equally
blunt obligation to pay for it. When another branch attempts to
shirk this duty, the Constitution requires the judiciary to defend
property owners. If the Appeals Court's decision stands, for the
first time in American history the courts will have created a giant
detour around this core constitutional requirement.
For property owners, particularly owners of rights on government
land, this detour has very practical consequences. Mineral rights
command a market value, because of the unqualified right to access
them freely, without the consent of the surface owner. Without this
right, the mineral rights are worthless, and, as the law has long
recognized, being able to petition a government agency for
permission to access them is all but worthless. Knowing a legal
route had been opened for depressing property values and acquiring
land for virtually nothing may be why one Interior Department
official called the Appeals panel's ruling "probably the most
significant 'taking' decision ever to come out of Federal
There are implications for other constitutional rights, as well.
Imagine if we said newspapers were free to operate -- as long as
they asked the government's permission to access their offices and
printing plants from the public roads and sidewalks. Does anyone
doubt that assurances that permission would be routinely granted
could quiet the indignation and protest of journalists
No one expects most papers to rise to the defense of property
owners. But, now that this case has reached a policy level, why is
the Department of the Interior fighting the original Court of
Claims decision? Protecting economic liberty and property rights
should be fundamental for this administration.
The understanding of rightful "public use" may change over time.
Yet the obligation of compensation does not, and justice requires
that government pay for what it takes. If the Supreme Court
recognizes the profound issues at stake in Stearns and accepts it
for review, Justice John Roberts and his brethren will have an
opportunity in their next term to confirm one of the bedrock rights
of our entire legal system. That would be a landmark
Edwin Meese III is a
fellow at The Heritage Foundation and holds its Ronald Reagan Chair
in Public Policy. He served as attorney general under President
Reagan. This commentary was adapted exclusively for the Trib from
remarks Mr. Meese delivered last month in Washington.
First appeared in The Wall Street Journal
Despite current hype from Senate Democrats, the landmark cases of the next five years probably won't concern civil rights, abortion or other issues that have liberals so worked up.
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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