Helping the Bear, Or “The Taking Issue” Was a Failed Propaganda Screed. So Why Is It Being Celebrated?

Once upon a time, a farmer went out to do his morning chores when he was set upon by a vicious bear. He realized that he couldn’t outrun the bear, so he started running around a pile of farm implements in the middle of the yard, hoping to stay ahead of the bear’s claws.

But as he rounded the pile of implements, he realized that the door to his farmhouse was open and his wife was standing in the doorway, taking it all in. So he cried out: “Woman! Don’t just stand there. Get me some help!” To which she replied: “It wouldn’t be fair. Ain’t nobody helpin’ the bear.”

In case you aren’t aware of it, Touro Law School in New York is about to celebrate the 40th anniversary of a book called “The Taking Issue” as well as its co-author Fred Bosselman who died recently. So why is this of interest? Because “The Taking Issue” was a propagandistic screed, published and supported by the government and funded by the Ford Foundation. Its avowed purpose was to help the government in getting the U.S. Supreme Court to overrule Pennsylvania Coal Co. v. Mahon, and thus do away with the principal constitutional obstacle to government confiscation of property.

In case your memory runneth not that far back, “The Taking Issue” was published in 1973 by the Government Printing Office which subsidized it with a $2.95 selling price. Its sponsor (read financier) was the federal Council on Environmental Quality. Fred Bosselman, David Callies and John Banta, who were then working for the Chicago law firm of Ross, Hardies, O’Keefe, Babcock & Parsons (now Ross & Hardies), where its authors were the firm’s land-use mavens. “The Taking  Issue” purported to be a historical examination of the taking doctrine, but it was nothing of the sort. It was an attack on that doctrine, particularly on Justice Holmes’ opinion in Pennsylvania Coal Co. v. Mahon, in which he held in an 8 to 1 opinion that property regulation that goes too far ceases to be regulation (i.e., a set of limits on the owner’s use of his property) and becomes a de facto taking of it (which occurs when regulation becomes so severe that the property’s ostensible owner is deprived of his ability to put his land to reasonable, economically viable uses, and is thereby stripped of its utility and value, while still being compelled to pay taxes and bear all the other burdens and liabilities of property ownership). Which means that, even though there is no physical invasion of the regulated owner’s land and his title is ostensibly left intact, the property may as well have been taken to the moon for all the good it does the owner now. Back in the olden days, when New York courts actually retained a modicum of respect for private property, the New York Court of Appeals once observed that outright confiscation would be better than a regulatory taking, because at least it would free the owner of his obligation to pay taxes and bear other costs and liabilities of property ownership. But that was then; this is now.

Here in California, where your faithful servant makes his domicile, “property” is defined as “the right of  one or more persons to possess and use it to the exclusion of others.” Cal. Civil Code Sec. 654, emphasis added. So it follows that if you can’t use the land that is colloquially referred to as your property, you don’t really own it. It’s like Blackstone once put it, “for what is property if not the use thereof?” What indeed?

Unfortunately, Holmes, being a classy lawyer who was writing a U.S. Supreme Court opinion, evidently assumed that lawyers and judges relying on his opinion would know this elementary stuff, and (being a fan of brief opinions) he did not explain those elementary, first-year law school  matters, like what is ownership, which turned out to be a mistake. But as all reasonably astute people know, the world is full of goniffs just itching to get their mitts on somebody else’s property, and to do so without paying and without going to jail. So they are ever ready to pretend that they never heard of “property” as a right rather than as a thing — for them, when it comes to takings, it’s a case of “I know it when I seize it.” No clod of dirt with which to perform livery of seisin — no property. That is why it was necessary to promulgate the Fifth Amendment (Thou shalt not take what isn’t yours without paying) and the  Eighth Commandment (Thou shalt not steal), and for Justice Holmes to bring these ideas into the 20th century.

And it came to pass that in the Pennsylvania Coal case the state of Pennsylvania forbade the extraction of minerals if that would cause subsidence of the surface of inhabited land. In itself that may have sounded like an innocuous police power measure, but the wrinkle here was that the coal company and the owners of the land overlying it had made a deal whereby the surface owners expressly conveyed to the coal company and the coal company expressly retained the right to mine coal even if that caused subsidence of the surface land and any structures built on it. So Holmes could have simply enforced the parties’ contract and that would have taken care of the problem. But instead he gave us the “too far” shtick without telling us what “too far” is, and without telling us how intrusive a regulation must be to cross the line into taking territory (He must have thought that it wasn’t necessary because in this case the restriction went as far as it could: a prohibition on mineral extraction de facto takes the minerals). So the Pennsylvania Coal opinion made clear that when the government “regulation” goes so far as to deprive the land’s owner of the usual benefits and indicia of property ownership, that’s “too far.”

And so, the law thus provided a measure of protection of land owners from the aforementioned goniffs and things went along until environmentalism came upon the scene, and the self-appointed saviors of field, stream and endangered kangaroo rats decided that their cause was more important than the constitution, and they began to argue that Pennsylvania Coal notwithstanding, severe land use regulation should be implemented and if the land owners of affected land lost their right of use as a result, tough — they would not receive the “just compensation” promised by the Fifth Amendment. That’s easy to say, but being smart, they understood that convincing the U.S. Supreme Court to say it would also be tough. So they launched a campaign to get Pennsylvania Coal overruled, and “The Taking Issue” was conceived of and written to serve as the big gun — the Big Bertha — of this campaign. We could go on for a bit, but to disclose the end of this story, the Supreme Court refused to do so in the Keystone Bituminous Coal Assn. v. De Benedictis case, and Pennsylvania Coal remains good albeit somewhat battered law.

That development left “The Taking Issue” as an anachronism that never accomplished it intended purpose of doing away with the Taking Clause of the Fifth Amendment. But its contents made clear its intention was to subvert private property rights, get the Supreme Court to overrule Pennsylvania Coal, and  to give us something that more resembled the British Socialist Town and Country Planning Act of 1947 than the American constitutional system. At least when the Brits tried to subvert their traditional property system* they did it candidly by an Act of Parliament, not by sneaking it in by pretending merely to be “interpreting” a constitutional guarantee out of existence. The authors made no bones that what they were about was to enlist on the side of an overreaching government against the constitutional rights of the citizen:

“If this book seems technical and detailed, it is because it is designed to assist government officials and attorneys who seek to fashion solutions to environmental problems.” The Taking Issue, at p. iii

And here we didn’t know that the government needed help when it set out to screw its citizens out of their constitutional rights. What’ll they think of next?

Make no mistake. We are/were acquainted with two of the three authors of “The Taking Issue” (Bosselman and Callies) and we always thought they were bright, knowledgeable folks. But that was and is no guarantee that their smarts would not on occasion be put to unfortunate uses. Of course, we don’t know what the various speakers at the Touro seminar will have to say about “The Taking Issue” from a 40 year perspective, and what the good-guy speakers will say about it, so we will abide the event, as old court opinions used to say. But we thought our readers should know about these things because 40 years is a long time, and there must be a whole new generation of youngsters out there that is unacquainted with this misbegotten caper, and may not fully realize that those Touro folks may be inviting them to help out the bear. As for us, we’re on the farmer’s side.



*     If you are interested in the Brits messing around with this area of the law, we recommend Arthur Shenfield, The Mirage of Social Land Value: Lessons from the British Experience, The Appraisal Journal, October 1976, at p. 523. It’s a good read that will tell you what you need to know.