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WEDNESDAY, APRIL 24, 2002

The Supreme Court dealt a blow to a group of private landowners in Nevada and California, finding that temporary prohibitions on development do not violate the U.S. Constitution.

In a 6-3 ruling, the Justices upheld a federal appeals court decision which deemed the restrictions lawful. Writing for the majority, Justice John Paul Stevens said the property owners aren't entitled to payment for not being able to use their land.

"A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision making," he said.

The opinion settles a dispute dating to the 1980s, when a temporary moratorium on development was placed around Lake Tahoe due to environmental concerns. Approximately 2,400 homeowners sued, charging that the ban, which ran a total of 32 months, required payment under the Fifth Amendment.

Also known as the "takings" clause, the amendment and its meaning have led to battles between private landowners, governments, tribes and environmentalists. Advocates of the property-rights movement contend the Constitution requires compensation in a wide number of scenarios.

But the Court clearly rejected the belief by declining to expand on previous rulings based on the Fifth Amendment. "Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation," he wrote.

"But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property," he added.

For that reason, the decision was taken as a major setback by property-rights proponents that filed briefs in the case. Pacific Legal Foundation, the California-based organization behind non-Indian farmers in the Klamath Basin and a failed Supreme Court challenge to the Hoopa Valley Tribe, said the decision was "an unfortunate blip in the forward progress of property rights."

Chief Justice William Rehnquist appeared to agree. In a dissent, which was joined by Justices Antonin Scalia and Clarence Thomas, he rejected the notion that the development ban was "temporary."

"The 'temporary' prohibition in this case that the Court finds is not a taking lasted almost six years," he charged. In contrast, a "permanent" taking that the Court found in a 1992 decision lasted just two years, he said.

Thomas authored his own dissent, also joined by Scalia. "A taking is exactly what occurred in this case," he wrote, saying the majority "has charted a markedly different path" by employing a "questionable" rule.

Beyond the compensation issue, property-rights groups are fighting considerations given to tribes and American Indians in national parks, monuments and public lands. Mountain States Legal Foundation, a Colorado-based organization which formerly employed Secretary of Interior Gale Norton, recently lost a case in Utah affecting Rainbow Bridge, considered sacred to the Hopi, Navajo and other tribes.

Property-rights proponents have also come down against tribal authority over non-Indians. In the Hoopa Valley case, which was rejected by the Supreme Court last month, Pacific Legal defended a woman who wanted to harvest timber near a sacred site.

Treaty rights and land claims have also been challenged, dating back to the infamous United Property Owners of Washington (UPOW), affiliated with some well-known politicians including former GOP Congressman Jack Metcalf. The often physically-combative organization opposed fishing rights in the Pacific Northwest and was the precursor to groups like the Citizens Equal Rights Alliance and Upstate Citizens for Equality, which is fighting land claims in New York state.

Get the Decision Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency No. 00-1167:
Syllabus | Opinion | Dissent [Rehnquist] | Dissent [Thomas]

Only on Indianz.Com:
Tribes in middle of property-rights battle (1/12)

Relevant Links:
Supreme Court Docket Sheet, Tahoe-Sierra Preservation v. Tahoe Regional Planning Agency - http://www.supremecourtus.gov/docket/00-1167.htm

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