Recently, many people in the Wise Use Movement have argued that if a regulation, typically environmental, deprives an owner of use, then the government should have used eminent domain and therefore must compensate the owner. Environmentalists, planners and social justice advocates argue that regulation is a two way street, that one can not accept the benefits of government action while demanding compensation for partial deprivations. Furthermore, legislation is an attempt to circumvent reasonable decisions by the Supreme Court  regarding this issue.

The Founders of the United States surely were not anti- responsibility. The Bill of Rights expressly protects freedom of speech, but the Supreme Court has held that that right is not absolute. It must be balanced with responsibility to the community. For instance, you don't have the absolute right to "yell 'fire' in a crowded theater." That endangers the safety and health of others. The 'just compensation' clause should be no different. Regulations against dumping toxic chemicals into our rivers or setting up factories in residential neighborhoods protect the health and safety of others, and one's right to own property is not absolute.

"Givings" is a term coined for the benefits of government regulation. The American Planning Association and environmentalists have argued that if the government must give compensation to landowners for takings, landowners must pay the government for 'givings.' For instance, when a road is built in the Arizona desert, that increases the property values of the people along that road. Shouldn't they pay the government for that service? It was a government action that affected them. If the government prevents a person from filling a wetland which mediates flood severity, that is also a government action which affects the landowner. Why should the government's interference be bad in one situation and not in another?

To find out how more about takings legislation in Wisconsin, click on Statement by the Coalition for the Common Good.

The people in the so-called Wise Use Movement have no answer to givings. They are a loosely affiliated coalition of other groups like People for the West! and Private Landowners Of Wisconsin (PLOW). They claim to be property rights advocates, or claim to advocate "responsible environmentalism." But upon closer examination, their true identity is revealed. Most of the funding for their speakers and pamphlets comes from big corporations in extracting industries- mining, timber, etc. Groups like People for the West! are as much anti-regulation as they are pro property rights.

Are they really for the "little guy" battling the big government? Hardly. It all depends on whose individual rights to which one is referring. A person may say to him or herself, "Yeah, just compensation sounds like a good idea to me. But, my major investment is my home. If my neighbor sets up a junkyard- and the government can't interfere because interference would be a taking- my property values will go down because of my neighbor's actions. And if the government does get involved, my neighbor is not allowed to do it and is compensated, my tax dollars will go up to pay for that." No one's rights are more important than another.

It is true that government makes some stupid decisions, and property owners should have an outlet for relief from extreme cases of government's stupid actions. In fact, until recently the Supreme Court had provided that relief,  declaring that "if a government action goes too far, it will be recognized as a taking." In the 1920's and until the 1990's, the Supreme Court set up a case by case analysis of the impact of a government regulation. Does the regulation prohibit all economically viable use?  If there is some value left, it is not  a taking. Justice Holmes, in Penn Central v City of New York  recognized the enormous bureaucracy (which conservatives are usually against) that would be involved if the government had to determine percentage decreases in value. Then The Court asked if the regulation was in "rough proportionality" to the goal of the regulation. If the regulation retained property value, but was not a "legitimate government concern", it would be held as unconstitutional. Thus it sets up reasonable limits on both government and property owners.

In Lucas v. South Carolina Coastal Commission (1992), Supreme Court Justice Scalia dismantled the "two pronged disjunctive test" in favor of a looser definition. He declared that partial depreciation was a taking, and if the regulation, no matter how needed, deprived the owner of use it was a taking. But he noted an exception that if what the property owner was going to do would be a public nuisance ( for instance, noise pollution) under common law anyway, it wasn't a taking. Lower courts seem to be holding this to him, instead of increasing the finding of takings like he desired.

Congress, under the Contract with America, and State Legislatures have also gotten into the game. There are two general types of legislation: assessment and compensation. Assessment type bills require the agency making a regulation to create a report beforehand on the whether such a regulation would be a taking. This would severely cripple government's ability to protect the public with expensive and time consuming reports. Compensation requires money damages, typically after 50% or 30% diminution in value. Such cases often result in battles of "your expert vs. my expert." Only a few states have passed such legislation, though a majority of states have considered it.

-Kim Banz