June 06, 2020

Extreme case of takings

Maine solved the issue of “takings” last year when residents with a wide range of viewpoints assembled a reasonable method for considering the rights of property owners while protecting the health and safety of the community. Congress should come to a similar agreement.

A good place to start would be by dropping a takings bill sponsored by Senate Majority Leader Bob Dole, which is expected to be considered next week. It is a far more dangerous bill than the one originally debated in Maine, and takes a radical approach to ensuring that owners who may not deserve to be are compensated, and federal agencies are tied up with doing cost-benefit analyses from now until doomsday. Maine’s delegation would serve the state well if it looked at the outcome of the takings debate here and urged their colleagues to reject the Senate measure.

Sen. Dole’s bill not only activates the compensation level at 33 percent of a property’s value (Maine’s proposal set it at 50 percent), but allows owners to consider only the “affected portion” of a property, thereby ensuring that a company could always define property to meet the threshhold. The Dole bill also would require compensation whenever any type of property loses value, unlike the House bill, which limited compensation to issues related to wetlands and endangered species. The broader Senate bill means that some of the cases that have lost before the Supreme Court may now find success under this proposed law.

These include the provider of a dial-a-porn service who in 1988 challenged as a taking Federal Communications Commission provisions involving access codes and scrambling devices to let parents block these services. Or the coal company in West Virginia that argued in 1994 that it suffered a taking when the Interior Department required it to reduce the amount of coal it was removing. The company’s activities had caused a major road to collapse, ruptured a gas line and endangered homes. Under the Dole bill, cases such as these would have strong cases for compensation from tax dollars.

Maine’s compromise on takings established a five-year trial period for mediation over disputes, directed the Legislature to consider the rights of property owners — while ensuring public health and safety — when debating new rules and asked the attorney general’s office to review applicable law to ensure that the state avoids unconstitutional takings.

The fact that Sen. Dole has sponsored the Senate bill places his presidential supporters in an awkward position. They would not want to embarass their candidate by rejecting the bill, and yet to support it — even though it is unlikely to overcome a veto — would put them on record for backing this ill-conceived proposal. The Senate majority leader controls the calendar of bills and has the option of letting the issue die. He should do so, and seek a more reasonable compromise on takings.

Have feedback? Want to know more? Send us ideas for follow-up stories.

comments for this post are closed

You may also like