The Property Rights Test

Despite current hype from Senate Democrats, the landmark cases of the next five years probably won't concern civil rights, abortion or other issues that have liberals so worked up. Current court vote-counts leave little room for major shifts, no matter what the judicial philosophy of Justice Sandra Day O'Connor's replacement. Instead, I believe some of the biggest cases will deal with property rights. Justice John Roberts may well find waiting on his desk one property-rights case potentially as momentous as the unfortunately decided Kelo v. New London. In Kelo the court gave government the right to take property from one private citizen or company and give it to another. In this anticipated case--Stearns Co. v. U.S.--the lower courts have overturned centuries of precedent, demonstrating that, when it comes to protecting private property, in Ronald Reagan's favorite maxim, government isn't the answer; it's the problem. Stearns concerns one of the most ancient principles in property law, that ownership includes an absolute right of access (what the law calls an "easement") and lawful use. In 1937, a Kentucky family--owners of the Stearns Co.--sold a tract of land, now part of the Daniel Boone National Forest, to the federal government. They kept the right, subject to environmental restraints, to mine the coal underneath, and the easement. In the late 1970s, Congress banned any mining in national forests, with two exceptions: where property rights already existed and, if they did not exist, where the secretary of the interior said mines could operate anyway. When regulations were issued, technicalities excluded Stearns from claiming "valid existing [property] rights." The bureaucrats told the company to ask for permission. To protect its property rights, the company sued. The case took two decades going through the courts. Three years ago the U.S. Court of Federal Claims ruled that the government's actions constituted a taking of private property for public purposes--and the Constitution required the property owner to be compensated. The court said that even if permission were granted, an Interior Department "sign off" was no property right. "The fact that an act of governmental grace or benefit may have returned . . . the plaintiff's right to mine does not alter the denial of [property] rights." But last year, a three-judge panel of the Court of Appeals for the Federal Circuit reversed the Court of Claims, a decision the full Federal Circuit Court upheld in April. In the next few weeks, the Supreme Court must decide whether or not to review that decision....

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