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Too late for one, SCOTUS accepts land use case

By Cheryl K. Chumley
web posted October 4, 2004

Finally, the nation's highest court will hear a case with potential to clarify the Fifth Amendment's private property protections. But to what degree the outcome will impact the future actions of the nation's most oppressive land grabber, the federal government, is unknown – and what difference this makes to one California woman, the latest of national park agency victims, is nothing.

"No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." That's the pertinent portion of the Fifth Amendment, and how that clause has been applied by state and local governments these past couple decades is the issue of interest presented the U.S. Supreme Court, via Kelo v. City of New London.

Citing eminent domain, New London officials tried to force homeowners to sell in order to clear the land for an upscale housing development – a trend toward watering the definition of "public use" that raged in certain states during the 1990s, the Institute for Justice found. In her book, Public Power, Private Gain, Dana Berliner, an attorney with this libertarian law firm, cited 10,282 instances of threats or actual land condemnations against private owners between 1998 and 2002 that occurred because of governments' attempts to use those properties for other private uses.

Forcing homeowners to sell to make room for, say, upscale housing or private business expansion is hardly in line with the original intent of the Constitution's "public use" property clause; hopefully, the justices will clarify that a larger tax base does not meet the criteria and such abuses will cease.

But what about the federal government: Will its system of declaring vast swaths of land off-limits to human use and development for environmental and preservation reasons, via executive orders, congressional legislation, and heavy-handed enforcement of land management policies, be impacted by this Supreme Court case? Examples of blanket disregard for the Fifth Amendment are seemingly abundant at the federal level; witness the status of Tennessee and its statewide characterization as a National Heritage Area.

Admittedly, NHAs represent state-federal partnerships for land preservation based on historical reasons – in Tennessee, the justification comes from the Civil War – but funding and oversight of the so-declared properties still involve the federal government. Since 1996, taxpayers nationwide have helped pay for Tennessee's label, $10 million over 13 years, and though no instances of private property abuses have yet been reported, a congressional research agency did find that NHAs give rise to the potential for Interior Dept. or National Park Service encroachments, as "no systematic process is in place to identify qualified candidate sites and designate them as national heritage areas."

The debate over NHAs continues in Congress, as do such efforts to expand national park areas (via, for example, S. 347 and its estimated $2 billion push for more acreage for the Santa Monica Mountains National Recreation Area) and to fine-tune roadless rules that have effectively kept many private property owners from accessing and using their own lands.

Whether the Supreme Court case will impact such federal involvement with state, local and private property management policies is negligible; taking land from private owners for public parks is certainly not as clear-cut a Fifth Amendment violation as the Connecticut city's attempt to use eminent domain for private developments. But perhaps the justices' attention to land use policy in general might result in at least a hesitation on the part of the federal government to encroach in the future, offering breathing room to land owners who fear unjustified takings and fates as epitomized by 44-year-old Connie Connelly.

Connelly, a 30-plus year resident of five northeastern acres in the Mojave National Preserve, just lost a years-long battle with the National Park Service over her land, according to reports from the Press-Enterprise of Inland Southern California, and is now set to move to a remote area of Wyoming. And though the NPS is buying her new home, Connelly is less than grateful – with good cause. On one occasion, mysterious black vehicles parked on her desert property left her afraid to leave her home; on another, the arrest background of a park agent left her fearing for her safety, reported Jennifer Foster, Connelly's comrade-in-arms against the NPS and a co-founder of the property rights protection agency, Public Lands for Public Use.

Still to come, too, might be jail time for Connelly; the battle with NPS centered on the government's claim she did not rightly own the property, and charges of trespassing and threats of a fine have yet to be dismissed.

"They're unwhippable," Connelly was quoted in the Press-Enterprise, on Sept. 18.

Hopefully, the Supreme Court justices are listening, and disagree.

Cheryl K. Chumley is a freelance columnist and may be reached at ckchumley@aol.com.

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