Gas Drilling : Inverse Condemnation : Private vs. Public Interests


Imagine a Neandrathal  stumbling upon a luscious piece of trail-kill 30,000 years ago  and debating  whether to share it with his hungry tribe or  eat it  himself.

Would survival of the fittest have trumped  his community’s needs?  Or would he have recognized  that food (like water) was  a Neandrathal utility — a resource essential to  the tribe’s survival  —  its consumption regulated with the common weal in mind?   Would Neandrathal society have  concocted some system of head thumps to ensure  that  fortunate ones shared with the hungry many?

Long-enshrined in our societal  understanding of survival  are two fundamental concepts that we treat with varying importance depending on the situation.

  • “A chain is only as strong as its weakest link.”  (Our community prospers when it  fosters and defends  the rights and strengths of  its members.)
  • “Ask not what your country can do for you  — ask what you can do for your country.”   (The strength of our  community  depends on the responsible generosity of its members.)

Some of the wildest and most contentious cases in Supreme Court history have attempted to resolve conflicts between  individual rights and  the community’s expectation that its larger, more inclusive  interests will predominate.

In  the earliest days of our Republic, Eminent Domain was  recognized as a  tool  inherent to the Federal Government’s mandate to “defend and protect.”   For  the  “public good,”  soldiers were billeted in Colonial homes during the Revolution  but  seizure of  private lands for permanent use  was  onerous to most early Americans and the “public use” restriction in the Fifth Amendment’s Takings Clause was strictly interpreted as a  protection against such seizures.

As  our population grew  and technology created a more mobile citizenry,  public works demanded more land for  roads, bridges and railroads.  In more recent years and in response to a landscape crammed full of skyscrapers, derricks, residential and shopping mall sprawl,  eminent domain has been used to protect open space for public enjoyment.   (The “public good” in this instance being protected  from the narrower interests of a few developers.)

Of particular interest to us in the Delaware River Basin is the  legal concept of  “inverse condemnation” which we hear with increasing frequency from  property holders demanding  they be compensated  when  regulations prohibit gas drilling on their properties.  According to a Fifth Amendment Annotation,** “While [the Fifth Amendment]  established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use….‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while [police power] involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’ 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ‘if regulation goes too far it will be recognized as a taking.”’ 254

Later, in a 2002 case,  (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency)  The U.S. Supreme Court found that, “Moratoria on all development in Lake Tahoe Basin area for a period totaling 32 months, imposed by a regional planning agency while formulating a land use plan for the area, were not per se takings of property requiring compensation under the Takings Clause.”

In a seemingly oblique but related development,  corporations attained “personhood”  when The U. S. Supreme Court stated in  Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) “…corporations are persons within the meaning of the [Due Process and Equal Protection clauses of the Fourteenth Amendment]….    We admit also… that corporations can invoke the benefits of provisions of the constitution and laws which guaranty [sic] to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it.”   (Bold added for emphasis.)

As the trend toward  condemnation of privately held lands has become more usual,  eminent domain actions have increasingly benefited “corporate  persons” in the guise of  public interests.  This trend  occasioned public outrage in 2005,  when The Court ruled in   Kelo v. New London that  privately-held  property could be  seized by a government  and handed over to  a private corporation  for the public benefit —  while said corporation stood to reap a boatload of  profits.

I would never deny just compensation to landholders whose property is seized for the public good but as I write this,  Congress has just launched  an investigation into  gas drilling practices  and their  potential harm to the environment.   Perhaps we should await its findings before deciding that those practices are either legal or in the public interest, as NYS Senator Bonacic has contended.

In that context, NYS  Senator John  Bonacic, the Northern Wayne Property  Owners’ Association (NWPOA) and energy corporations  have  begun a campaign of hostage-taking.  In an  “Alice-Down-The-Rabbit-Hole” logical warp,  they have demanded that millions of people who depend on water from the Delaware River Basin and New York City Watershed pay  landholders NOT to risk  that water supply with a toxic soup of corporate fracking fluids.

“Bizarre-o!”  as my friend Amanda might say.  Or more elegantly,  I refer you to  Cliff Westfall’s analogy of a few days ago, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house?  Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”   In further explanation of Mr. Westfall’s comparison,  please understand that  fracturing fluids  used in gas drilling are injected underground,  may travel as much as 6,000 feet and their  direction is neither predictable nor controllable…like a forest fire.

It is inconceivable  that Senator Bonacic and the NWPOA  truly believe that in our current economic crisis any governmental entity (or body of taxpayers) has the means to pay the ransom.  The national unemployment rate is blowing up in our faces.  Tax revenues are plummeting.  Small businesses are dying.  Our infrastructure is crumbling and our children are moving back home and forsaking dreams of college.  In the event NWPOA or some other organization of  lessors prevails in  a lawsuit demanding compensation for the value of their  mineral rights,  every taxpayer, student and worker who does not  benefit from gas royalties will lose.  And the sure winners?  Drilling companies who stand in the background ready to reap the  profits.

Given the latest U.S. Supreme Court decision which found in Citizens United v. Federal Election Commission —  a la George Orwell’s  Animal Farm —  that some “persons”  and their lobbyists  “are more equal than others,” we should not doubt the risk faced by our water and our Republic.

And given the evolutionary demise of Neandrathal,  I can’t help but wonder if  he decided to eat the whole thing all by himself.

Urge the Delaware River Basin Commission and the US Congress  to  enact moratoria  on drilling. It’s for the “public good”  because,  as more and more people are beginning to remember,  “We cannot drink gas  nor grow our food with it.”


*   “…nor shall private property be taken for public use, without just compensation.”

**In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ”[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it ”commercially impracticable to mine certain coal,” had essentially ”the same effect for constitutional purposes as appropriating or destroying it.” 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ”too far.” 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ”does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.” 258 Instead, the state had identified ”important public interests” (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ”commercially impracticable” for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes–either the coal in place under protected structures, or the ”support estate” recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.

In a case examining a Moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167).  …the Court held that because the regulation was temporary, it could not constitute a categorical taking.”

Inauguration Jubilee: Pastor Warren’s Incoherence

“We will hold out our hand  if you are willing to unclench your fists.”

So said  President Obama in his Inaugural speech.

So said civil rights activists to Pastor Rick Warren.

They said it after he likened  controlling  one’s homosexuality to controlling one’s promiscuity.   Just say  “No,” is Warren’s breezy prescription for slicing and dicing one’s  own sexuality.    “I think that’s part of maturity. I think it’s part of delayed gratification. I think it’s part of character.” Only, it’s not “delayed gratification,” is it?  His prescription is for a lifelong self-rebuke.

“Ah hah!”  you say.  “‘Pastor Rick’ would support  gay marriage if he thought  ‘gayness’  was a birth defect rather than a noxious choice.”

You’d be wrong.  He’d still oppose it because he’s  “… opposed to the re-definition of a 5,000 year definition of marriage….  Historically, marriage is a man and a woman.”

Warren enlarged the thought,  “Opposition to same sex marriage is shared by a majority of Americans and by President-elect Obama — and is based on Biblical teachings.”

And,  according to a  Time article,  Warren e-mailed a statement to his 30,000 members urging them to “vote yes on Proposition 8 — to preserve the biblical definition of marriage.”

(I’m not sure how  Pastor Warren feels about    Abraham, the famous patriarch who fathered   three great religions with three different and concurrent wives.)

Coincidentally,   in the Curry interview,  Reverend Warren stated, “I don’t think gay marriage is any threat to marriage.  So that’s not why I’m voting the way I did. I think divorce is a bigger problem to marriage than anything else.”  (Curry-Warren interview transcript)

So?    “No harm,  no foul”  is  one of our earliest legal tenets.  Our courts  simply do not weigh the legal merits of   hypothetical cases.  They do not engage in judicial review.  They like  their plaintiffs  harmed and bleeding from some dastardly act.  If  hetero marriages aren’t  threatened by gay marriages and there’s no demonstrable harm to non-gays  and there’s no apparent legal basis for heterosexuals to oppose gay marriage,  why did Pastor Warren work so hard to eradicate gay marriages in California?    “Warren says he joined the fray out of a concern if Proposition 8 wasn’t passed, pastors would lose their right to preach about the Biblical definition of marriage. But many constitutional experts say that fear was totally unfounded and gay rights leaders saw Warren’s stance as an infringement on their civil rights.”   (Curry-Warren interview transcript)

According to Pastor Warren, then,  he’s afraid that if gay marriage is legalized, he’ll be arrested for preaching    the Biblical man-woman version.   As absurd as that sounds, it’s heartening to know he cares for someone’s civil rights.

In the  Baptist Press, Pastor Warren is quoted as saying,  “This [gay marriage]  is not a political issue, it is a moral issue that God has spoken clearly about.  There is no doubt where we should stand on this issue.”

And then,  he used his pulpit  to rouse  30,000 church members against the law of the land.

According to most commentators,  in  a follow up to his Ann Curry interview,    Pastor Warren equated  gay relationships with  pedophilia,  polygamy/bigamy and incest .  What he actually suggested was far more bizarre:   that legalizing homosexual marriages  might open the door to legalizing   incestuous, polygamous  and  pediophilic (sic)  marriages.  (YouTube)

That’s right:  legalize  gay marriage and the justice system will run amok.  All manner of sinners will want to marry.  If you doubt his logic, I refer you to the  film, Reefer Madness.  It’s an old docudrama about what happens to people who smoke marijuana.

It’s distressing  that President Obama would appoint an invoker who’s illogical and incoherent.  Just as distressing is  Pastor Warren’s use  of his  tax-deductible ministry and Biblical verses to change our civil laws.

Even when King Henry VIII of England was ex-communicated by the Pope, he refused to cede his civil supremacy to the  Catholic Church.  For sure, some of  Henry’s  stubbornness was due to a lack of healthy male heirs and his desire to divorce-at-will, but  in the end,  King Henry rejected  Papal dominion over  England. It was an act of defiance at a time when people  feared Hell and The Church at least as much as they did  Henry.  After all, the Pope could condemn the entire country to burn in Hell  for eternity.

Henry’s great battle with the Church was one reason our founders codified the independence of  our secular state.

By all means, President Obama should  invite Pastor Warren into the tent.   I’ll work with   anyone willing to feed the hungry or save the planet,  but our spokespeople must not  be the kind who deny civil rights to  our fellow-toilers.

And, in case it isn’t clear,  it stresses my good humor that while  our states and municipalities face  gross  revenue shortages,  Pastor Warren’s   endorsement of Proposition 8 was made publicly and from his pulpit. He used his position as a  minister of a charitable-tax-deductible organization  to support passage of a public law on Biblical grounds.

On the other hand, maybe  Rev.  Warren’s  Invocation  is  the sound of  a  politically savvy  fist unclenching.   He  asked God to forgive us    “When we fail to treat our fellow human beings and all the Earth with the respect that they deserve….”

Is Pastor Warren  unclenching his fist or is he positioning himself to better dictate  the degree of  “respect”  the rest of us deserve?

LATE NOTE:   Please check with your local food pantries and soup kitchens.  The ones in my village are running on empty.  According to Reuters,  Cash America sees lower Q4 profit, cuts 2009 view.  Cash America operates pawn shops and provides cash advances.  “…fourth-quarter earnings were also hit by higher loss rates for its online cash advance product and heavier discounting to clear inventory during the Christmas season.”  In other words,  people  couldn’t afford to  re-pay their loans, redeem their lost valuables or to buy Christmas presents at their local pawnshop.

1.   Text of  Pastor Rick Warren’s  Inaugural Invocation or search at Associated Press.