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web posted January 14, 2002

The Prisoner to be discussed at LFB

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Court looks at landowners' rights

The Supreme Court on January 7 plunged into the thorny issue of how much power the government has to dictate what people do with their land.

The principal question for the justices is whether the government must compensate landowners whom it has temporarily banned from using their property as they see fit. Justices must confront the vexing issue of whether a constitutional ban on "taking" someone's land without compensation applies to temporary government land-use bans.

The case involves hundreds of people who bought property on Lake Tahoe and have waited about two decades for permission to build there, and the eventual ruling could have far-reaching implications for local and state leaders who use zoning ordinances to slow growth and protect the environment.

"Those people shouldn't be left flapping in the breeze with no compensation," attorney Michael M. Berger told justices.

He gave this scenario: "It's as if I took away your car for a year and parked it in a garage. You still would have been without the use of that car for a year."

Court members seemed sympathetic to landowners, including those who tired of waiting and sold their property to the government. At the same time, they noted the government's interest in limiting development. "The justification is excellent - saving Lake Tahoe," said Justice Stephen Breyer.

The court will decide the narrow issue of whether an initial moratorium, from 1981-84, amounted to a taking. The landowners had sought $27 million in damages. The case has made for strange bedfellows among conservatives and the Bush administration.

The Tahoe Regional Planning Agency imposed a construction moratorium because of concerns about burgeoning development that was changing the color of Lake Tahoe, which is on the California-Nevada border.

About 700 families filed suit, and their case has gone before the 9th U.S. Circuit Court of Appeals four times. The Supreme Court agreed to hear the families' appeal last year.

John G. Roberts Jr., representing the planning agency, said the moratorium was "a time-out, for a limited period."

The Supreme Court, under conservative Chief Justice William H. Rehnquist, has repeatedly sided with property owners in land fights.

In this case, the Bush administration is on the other side.

Solicitor General Theodore Olson sparred with Rehnquist and Justice Antonin Scalia over the landowners' predicament.

Olson said agencies should be allowed time to develop sensible plans, as in this case, without having to pay landowners.

"I don't think this is a traditional moratorium. I think it's extraordinary," Scalia told Olson. "They couldn't use their property at all."

"Not every delay ... constitutes a taking," Olson said.

The Supreme Court has dealt with a similar case before, deciding in 1987 that governments must pay for temporary takings unless they are normal and relate to the routine permitting process.

Michael Ramsey, a law professor at the University of San Diego, said if the landowners win, "It would open the door to a tremendous number of cases."

Justice Anthony M. Kennedy asked lawyers on January 7 if the city of New York could be sued if it temporarily banned any rebuilding at the World Trade Center site while the site's future was pondered.

The case is Tahoe-Sierra Preservation v. Tahoe Regional Planning Agency, 00-1167.

Washington's patriotic portrait brushed aside

A New Jersey man's plan to put George Washington's portrait back in the classroom has been chopped down by politicians who didn't find his Yankee Doodle plan so dandy.

George Washington"It's absolutely astounding what's going on in our schools," said businessman William Sanders, who created the Portraits of Patriots project in 1998 to reverse what he saw as the decline of American history's place in the classroom.

Working from his home, Sanders frames prints of an original Washington portrait engraved by William Marshall in 1862, and campaigns to distribute them to schools.

"I thought that it would be a fitting project to commemorate Washington's death by reintroducing his portrait back into the schools," he said.

Congress ordered the portraits placed in classrooms as part of a 1932 Washington's birthday anniversary celebration, though the pictures began to disappear by the late 1960s, mainly due to the deterioration of non-archival materials.

Sanders took his proposal to, among others, the New Jersey state Legislature. There it was passed by the state Assembly, but died in a Senate committee. And it's not receiving much support elsewhere.

"We feel it is not a necessary piece of legislation," said Dawn Hiltner, spokesperson for the New Jersey Education Association. "There were so many great men and women throughout U.S. history that it would be an injustice to have George Washington singled out as the one person to have his picture posted in every school."

Hiltner claimed the portraits would "not really do anything to help the children's understanding of what he's done or the role he's accomplished."

That reaction astounded Sanders, who cited surveys showing one in four American students can't even identify George Washington as the man on the dollar bill.

Jeff Pasley, an assistant professor of history at the University of Missouri-Columbia, does believe schools need to improve history education but finds the benefits of hanging a portrait questionable. "One of the problems with the whole portrait idea is choosing one picture or hanging a bunch of different portraits to try and cover all of your bases," he said.

Portraits can also be seen as shrines in schools, he said, adding, "If you build someone up as a kind of saint people get disillusioned very easily."

But Sanders, a father of two teen-agers, won't be persuaded. "We have generations of children now who aren't clear on historical facts, and if we don't clear this up now we'll forget where we came from," he said.

Sanders has charged forward with his crusade to boost students' understanding of the first president. He has personally donated about 20 paintings (at $250 each), and sold off others with the help of various rotary clubs and parent-teacher groups.

Sanders said he believes the teachings of Washington are as timely today as they were when then-Lt. Col. Ulysses S. Grant III, grandson of the 18th president of the United States, delivered a 1930 speech to — of all people — the National Education Association.

"Teach your pupils to know and admire George Washington, to carry his example and companionship in their hearts," Grant said in the speech, "and the country's destiny will be safe in the hands of the next generation."

China nuclear weapons to be pointed at U.S.

China is expected to have between 75 and 100 long-range nuclear missiles pointed at the United States by 2015, roughly quadruple the current number, according to a CIA report released January 9.

Many of those intercontinental ballistic missiles will be on mobile launchers, helping China maintain a nuclear deterrent against the vastly larger U.S. missile force, says the report, titled "Foreign Missile Developments and the Ballistic Missile Threat Through 2015."

Echoing earlier intelligence estimates, the report also says North Korea and Iran will probably have long-range missiles capable of reaching the United States by 2015. These assessments have been used to justify U.S. plans for multibillion-dollar missile defense systems capable of shooting down a limited ICBM attack on the continental United States.

The report draws together information and analyses from the CIA and other U.S. intelligence.

Currently, China has about 20 silos with CSS-4 nuclear ICBMs capable of reaching the United States, the report says. It also has a few medium-range, submarine-launched ballistic missiles and probably one submarine from which to launch them.

The Chinese military is developing three new missile systems, all of which could be fielded by 2010, the report says. The Chinese may also be able to mount multiple-independent re-entry vehicles – MIRVs – on its older silo-based missiles. These enable a single missile to launch warheads at several targets, vastly increasing potential damage.

China sees an expanded ICBM force necessary to overcome a U.S. missile defense system, maintaining its ability to strike the U.S. mainland. This would provide a deterrent during a conflict over Taiwan. While U.S. officials insist the missile defense program is to defeat strikes by North Korea and other "rogue" nations, some of those proposed defenses might have been sufficient to shoot down all 20 Chinese ICBMs. Eighty missiles would be too many, however.

China also is expanding its short-range ballistic missile force, and will probably have several hundred by 2005, the report says. These are armed with conventional warheads which could be used to bombard Taiwan from the Chinese mainland.

North Korea, meanwhile, has halted missile flight-testing until at least 2003, although it continues to develop the Taepo Dong-2, a two-stage missile that would be capable of reaching the western United States. North Korea also probably has one or two nuclear weapons that could be mounted on those missiles, the report says.

Iran, meanwhile, might be able to test a long-range missile around 2005, the report says, but more likely won't have the capability to do so until 2010.

The report reflects some differences of opinion between U.S. intelligence agencies, with one unidentified agency arguing that Iran won't be able to test missiles able to reach the U.S. mainland even by 2015. Its projections also assume each country's political direction will not change significantly during the next 13 years.

Ongoing U.N. prohibitions prevent Iraq from importing most of the equipment and expertise it needs to create an ICBM, the report says, but if those were lifted, Iraq could rapidly develop such weapons with substantial foreign assistance.

Russia's strategic missile force will continue to get smaller, but Russia will still have far and away the largest nuclear missile inventory capable of hitting the United States, the report says.

Terrorists aren't expected to employ long-range missiles to deliver nuclear and other weapons of mass destruction on the United States, the report says.

"Ships, trucks, airplanes and other means may be used," it says.

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