Eminent Domain Epidemic

Liberty Matters News Service
Volume V, Issue 27
March 8, 2002

The Washington Times reports governments all over America are increasingly using their powers of eminent domain to oust private citizens from their homes to make way for shopping malls, industrial developments and upscale housing.  In New London, CT the homes of dozens of people have been condemned to make way for an office park and other development to compliment a nearby Pfizer research center.  The city of Riviera Beach, FL is planning to force more than 5,000 residents from their homes to build a privately owned commercial and industrial development.  Lawyers at the non-profit organization, Institute of Justice, report that they “cannot handle even one-tenth of the cases that now come its way.”   The Castle Coalition, an organization recently formed to fight eminent domain abuse, has issued a report identifying ten of the worst examples;  “Government Theft:  The Top Ten Abuses of Eminent Domain, 1998-2002.”  To learn more, go to www.castlecoalition.org.  Hawaiians are fighting their own battle over eminent domain after the Honolulu City Council condemned “the land of four small landowners in Waikiki only to turn it over to another private entity, the Outrigger Hotel and Resorts, so that company could develop a $300 million hotel and restaurant superblock.”  The Hawaiian legislature is attempting to deal with the situation.
Eminent Domain Abuses Unchecked Condemnation Powers Questioned Coalition Forms To Fight Abuse of Eminent Domain

Judge Agrees:  People Matter Too

U.S. District Judge Stephen V. Wilson said the U.S. Fish and Wildlife Service must redo the economic analysis of critical
habitat for the California gnatcatcher and the fairy shrimp.  The judge referenced the 10th Circuit Court of Appeals, that in May, 2001, struck down streamside habitat protection for the Southwestern willow flycatcher, when it ruled the Service had not adequately analyzed the financial effect on property owners and others who make a living from the land. One study estimated that the “gnatcatcher habitat would cost the state $5.5 billion in lost jobs, housing and property value over 20 years.”  The U.S. Fish and Wildlife Service said the administration’s request for review “is part of a broad reevaluation of ‘critical habitat’ designations,” and which environmentalists see as the beginning of a rollback of protections of ‘endangered’ plants and animals.  William Snap, vice president of legal affairs for Defenders of Wildlife whined that “this is a huge issue because…I think it’s upwards of 100 species whose habitats are hanging in the balance.”  Kristen Gustafson, the attorney for USFW stated, ”the gnatcatcher and fairy shrimp will not suffer harm if the habitat were vacated…because both creatures would be adequately protected by other sections of the Endangered Species Act." 
Judge Overturns 'Critical Habitat' of 2 Species

Heads Up, Western Livestock Grazers

A Ninth Circuit Court of Appeals case may offer livestock grazers whose permits have been suspended or canceled, an opportunity to request a review of the circumstances by the Forest Service.  In the July 2001 case Anchustegui v. Department of Agriculture, the Court held that the Forest Service had violated Section 558(c) of the Administrative Procedures Act, which provides that the government may not take action to annul a license (grazing permit) unless the agency first gives ample written notice of the facts and gives the permittee an opportunity to respond.  The Service has now changed its policy to comply with the Court’s decision and further, has established a policy to review circumstances of previous grazing permit suspensions that occurred within the last six years.  The suspensions will only be reviewed upon request by the permittee and only those occurring within the proper time frame will be considered.  All those meeting such criteria are urged to contact an attorney to discuss their legal options.  
mportant Notice

Owls Not Endangered?

A coalition of timber groups argue the federal government has failed to follow the Endangered Species Act requirement to review the status of threatened animals every five years and that new evidence indicates the birds are not as rare as formerly believed.  The petition states “scientists have produced a ‘materially different picture of the status of the northern spotted owl population’ than what federal officials relied on in extending legal protection to the birds in 1990.”  Secretary Norton has 60 days to answer the petition.  If she fails to do so, or if the timber group is dissatisfied with her response, it can legally file suit against the government.  Removing the owls’ protection may not be a long shot, either, since a California judge recently lifted critical habitat protection for two species in response to pressure from the Bush administration.
Timber Group Seeks End to Owl Protection

Only in California - Vagrants Win

A recent Liberty Matters story told of a San Francisco ordinance that required owners of a renovated historic hotel to set aside a certain number of rooms for the homeless folks who had been displaced by the improvements or pay a sum of $600,000 to be released from the requirement.  The owners sued, claiming a regulatory taking.  The suit went to the California Supreme Court, which rejected their claim, 4-3 proving that only in California do vagrants have more rights than hardworking, taxpaying, landowning citizens.
Georgetown Environmental Law & Policy Institute's Takings-Net

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