By Donella Meadows

–March 9, 1995–

I’m going to turn my farm into a gold mine.

Old rumors about gold circulate around this town.  Maybe some of it is under my farm. I plan to blast out the bedrock, grind the rubble, and run cyanide through the grindings to dissolve out the gold.  I think I can find as much as $6 million worth.

What, you say the land isn’t zoned for mining?  The town well is just downstream?   A third of my farm is protected wetland?  The cyanide runoff will kill the endangered dwarf wedge mussel in the Connecticut River?

Well, too, too bad.  If you block my mine, you’re impeding my private property rights.  Under the Fifth Amendment of the Constitution (“nor shall private property be taken for public use without just compensation”) that’s a “taking.”  If you want me to preserve wetlands or keep water pure, pay me.  Otherwise I’ll sue the town (zoning), the state (water regulations), and the feds (Endangered Species Act).  Collectively you owe me $6 million.

That’s not a crazy scenario.  One like it just hit the courts in Colorado.  The owners of the Summitville gold mine, having extracted $6 million in gold and poisoned 17 miles of the Alamosa River, are demanding compensation for a “taking,” because their cyanide heap has been declared a Superfund site, and they can no longer mine the land, nor sell it.

“Takings” is the most terrible of all the terrible ideas in the Contract with America.  Takings laws are also being pushed at county and state levels, backed by oil companies, timber companies, mining companies, developers.  Shucks, let’s name a few: Weyerhaeuser, Exxon, Du Pont, Boise-Cascade, Texaco, the National Cattleman’s Association, the American Mining Congress, and the National Association of Realtors.

You don’t hear about those corporate interests in the takings rhetoric.  You hear only about little guys.  A man’s got a right to do what he wants with his land. The Founding Fathers.  The sacredness of private property.  The stupid government won’t even let you make a buck anymore.

The real message is:  If I can make money doing something — if I can even imagine making money doing something — no one has a right to stop me.  Money in my pocket is more important than public safety, clean air, clean water.  Pay me not to pollute.

In fact pay me if you want me to do anything for the public good.  Here are some takings cases that have come to the courts:

• A motel operator demanded compensation because the Civil Rights Act required him to rent to people of color, diminishing his business, he says.
• A dial-a-porn company sued the Federal Communications Commission for regulations that prevent children from using its service.
• A tavern owner sued the state of Arkansas because its highway sobriety checks cause people to drink less.
• A coal company mining an underground seam caused land to subside, ruptured a gas line, collapsed a highway, and destroyed homes.  The Office of Surface Mining told it to stop.  The company said, pay us for the value of the coal you won’t let us mine.
• The owner of a plumbing supply store sued when the city told her she couldn’t pave her parking lot unless she left 10 percent of her land free (the land was in a floodplain) to reduce downstream flooding.

The courts threw out the first three of those claims and, unfortunately, granted the last two.

Legal interpretations of the Fifth Amendment takings clause started in 1887, when a beer brewer argued that a Kansas prohibition law was a taking.  The Supreme Court said, “a government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use.”  Since then the courts have generally ruled that you need be compensated only when a public action takes most or all of your property.  If the state wants your land for a highway, it has to buy it at a fair price.  If it wants you to stop dumping sewage into a stream, it doesn’t owe you a thing.

With increasingly conservative courts, the “takings” line has been pushed farther toward the individual good and away from the public good.  The Contract with America pushes it even further.  Originally it defined a taking as any regulation that reduces property value by even 10 percent.  The current version, passed by the House, now in the Senate, says 20 percent.

Either way, the real purpose of this legislation can’t be to protect property rights.  If it were, there would be some concern for the homeowners along the poisoned 17 miles of the Alamosa River, those downwind from polluting factories, those whose property value is diminished by ugly development.

The purpose can’t be to redress private versus public imbalances, either.  Takings advocates are strikingly silent about public givings — royalty-free mines on public lands, subsidized logging roads, underpriced grazing permits, tax breaks for oil drillers, publicly funded roads, bridges, and water projects that give some private property virtually all its value.  The property rights folks have never, as far as I know, offered to share private gains that come at public expense.

Rather, their purpose, readily admitted by some, is to make environmental laws go away.  If the cost of clean water is to pay every gold-crazed landowner her fantasy earnings from her land, so much for the Clean Water Act.  So much for regulating toxic wastes, food safety, strip mining.  Good bye endangered species.

You can see why developers and resource-extracting industries love this idea.  You can see why no sane nation would allow it.

The Capitol phone line is 202-224-3121.  You don’t even need to know your Senators’ names (though you should!); just ask the operator for the Senators from your state.

Copyright Sustainability Institute 1995