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.
Domain Abuses Unchecked Condemnation
Powers Questioned Coalition
Forms To Fight Abuse of Eminent Domain
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."
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.
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.
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.
Environmental Law & Policy Institute's Takings-Net
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