Takings II

Public Health and Safety "Takings"

Suppose the government must cut a firebreak through a forest upon private property to prevent spread of a forest fire. Or suppose the government destroys healthy livestock in a quarantine area to prevent spread of disease. These are invasive takings, but they do not fall under the per se rule described in the previous panel. From the very first, the takings cases recognized that `all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.' Mugler v. Kansas, 123 U.S. 623, 665 (1887). The most straightforward example of this principle occurs when the government must condemn or destroy property to prevent spread of disease or other threat to the public health or safety. "Thus, in order to protect the health and safety of the community, government may condemn unsafe structures, may close unlawful business operations, may destroy infected trees, and surely may restrict access to hazardous areas - for example, land on which radioactive materials have been discharged, land in the path of a lava flow from an erupting volcano, or land in the path of a potentially life-threatening flood. When a governmental entity imposes these types of health and safety regulations, it may not be "burdened with the condition that [it] must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community."

Participation in a community, by its very nature, requires adherence to a set of mutual obligations designed to make community possible in the first place. The very idea of property, after all, rests upon the existence of an ordered community. Without community, there is no property, for rights in property are defined, enforced, and protected by the community itself. The value of our property itself, rests upon the infrastructure of transportation, utilities, and planning, which makes modern society possible.

Regulations Impairing the Use of Land

State land use, public health and environmental legislation necessarily limits the use of private property. But these laws do not directly occupy private property. What then are the limits on state power to constrain the use of private property without providing compensation. In the next panel, we will look at some of the other issues confronted by federal courts in applying the anti-confiscation protection to the states.

Two important cases, both dealing with state mining regulation, help frame this issue. The first, PENNSYLVANIA COAL CO. v. MAHON, 260 U.S. 393 (1922), was decided by the Supreme Court at a time when the the Court actively intervened broadly against state and local regulation in a variety of contexts. The case arose from a challenge to state legislation designed to deal with coal mine subsidence. As the Court later explained in KEYSTONE BITUMINOUS COAL ASSN. v. DeBENEDICTIS, 480 U.S. 470 (1987):

• "Coal mine subsidence is the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal. This lowering of the strata can have devastating effects. It often causes substantial damage to foundations, walls, other structural members, and the integrity of houses and buildings. Subsidence frequently causes sinkholes or troughs in land which make the land difficult or impossible to develop. Its effect on farming has been well documented - many subsided areas cannot be plowed or properly prepared. Subsidence can also cause the loss of groundwater and surface ponds."

From 1890 to 1920 coal interests purchased great reaches of mineral interests throughout western Pennsylvania. Under these purchases, the landowner preserved the right to use the surface land, but gave up mineral claims. Many of the deeds to mineral interests contained waivers which gave up the right to claim damages to the surface interest, in the event that mining caused damage to the surface interest. As the Court later explained:

• It is stipulated that approximately 90% of the coal that is or will be mined by petitioners in western Pennsylvania was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired or retained certain additional rights that would enable them to extract and remove the coal. Thus, they acquired the right to deposit wastes, to provide for drainage and ventilation, and to erect facilities such as tipples, roads, or railroads, on the surface. Additionally, they typically acquired a waiver of any claims for damages that might result from the removal of the coal.

The two cases we review in this panel both reviewed state legislation which sought to limit the amount of devastation which could be caused by this undermining process. The coal companies argued that they had acquired the right to this devastation: that it had been purchased from others who originally owned it. The state and injured landowners argued that the right to devastate was not property. Or, viewed differently, that all property is held subject to the government's right to regulate.

How should this question be answered; and who should answer it? Who defines what property is; the State or the Supreme Court? Suppose Mr. Jones sells a large tract of land to Mr. Smith, and specifically includes all of the water rights, to draw water from wells, from surface water, and from underlying aquifers. Suppose the deed of sale purports to transfer the right to move all water, every last drop, from the aquifer underneath the land. Does this mean, then, that Mr. Smith can now completely drain that aquifer? Does the answer depend upon the scope of water rights recognized by the courts at the time of the sale? Does the "property right" conferred in water essentially freeze any and all changes in public policy with regard to water, no matter what changes take place?

Could it be true that the landowner who sold coal mineral rights in 1870, at a time when the area was only sparsely populated, by the act of transferring those mineral rights deprived future citizens from regulating the mining of coal. The coal companies advocated for a very broad vision of what can be owned indeed. In some cases, the landowner may well have failed to appreciate the nature of the mining which would then follow. Indeed, the coal companies themselves may not have then been able to predict the ultimate devastation to the landscape which would ensue. In other cases, the surrounding land uses may have changed markedly over the years, and urban growth may have spread into the mining areas, perhaps oblivious to the lurking danger. Didn't the coal companies benefit from the establishment of communities in coal country: where would the miners have come from; how would associated services have been provided economically, without these new communities. Would not the value of coal itself have been dramatically reduced but for the ability to provide security to the surrounding inhabitants.

In any event, the early mining operations often removed so much of the underground coal that the mines became a hazard to the miners underground and to those residing on the surface. For this reason, the Pennsylvania legislature acted to limit the amount of material that could be removed from the mines below: so as to leave sufficient underground support below. PENNSYLVANIA COAL CO. v. MAHON involved an action by an individual landowner who sought to prevent a mining operation from violating this law, undermining their home. Interestingly, the landowner had acquired the home (indirectly) via the Coal company, which had originally owned the land. The owner's deed conveyed the surface but in express terms reserved the right to remove all the coal. And the deed provided that the grantee takes the premises with the risk and waives all claim for damages that may arise from mining out the coal. The coal company essentially claimed a property right to mine as much as it wished, without regard to consequences to the surface, by reason of this deed. Over a dissent by Justice Brandeis, the court ruled that Pennsylvania's statute deprived the coal companies of the right to mine some of their coal, and this was deemed a confiscation:. The Court's opinion recognizes that government may lawfully limit the use of property to some extent without compensation, but found that this statute went too far. It is difficult, however, to discern any clear explanation as to how one might find that limit:

• "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts."

The opinion strains to distinguish previous cases:

• The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go-and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U.S. 16 . In general it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's shoulders. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said this is a question of degree-and therefore cannot be disposed of by general propositions. But we regard this as going beyond any of the cases decided by this Court. The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They were to the verge of the law but fell far short of the present act.

Some 65 years later, the Court considered similar Pennsylvania legislation, once again limiting the amount of coal which could be taken, once again designed to prevent subsidence. But this new legislation received a more sympathetic hearing from the Court in KEYSTONE BITUMINOUS COAL ASSN. v. DeBENEDICTIS, 480 U.S. 470 (1987). "...[T]he character of the governmental action involved here leans heavily against finding a taking; the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare. [t]here is no record in this case to support a finding, similar to the one the Court made in Pennsylvania Coal, that the Subsidence Act makes it impossible for petitioners to profitably engage in their business...."

The Keystone decision is characterized by deference to the State's determination that its legislation promoted public health and safety:

• Under our system of government, one of the State's primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. These restrictions are "properly treated as part of the burden of common citizenship." Long ago it was recognized that "all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community," and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.

Notably, the Keystone decision bears four dissents: Justices Rehnquist, Powell, O'Connor and Scalia.