Property Owners Deserve Equal Access To Justice

On Point No. 10


The Bill of Rights to the United States Constitution was enacted to secure the rights of Americans. It enumerates several rights that may not be infringed upon by the government. Among these rights is the right of private property. The so-called "takings clause" of the Fifth Amendment reads "nor shall private property be taken for public use without just compensation."

Yet while an individual who is deprived of her First Amendment right to free speech or Fourteenth Amendment right to equal protection has a clear opportunity to pursue her claim in federal court, private property owners face far more hurdles and obstacles. As a result, most Americans whose private property rights are violated by government agencies never get their day in court. Fortunately, that may be about to change.

After years of false starts, property rights legislation is picking up steam in Congress. Two bills – H.R. 1534, the Private Property Rights Implementation Act, and H.R. 992, the Tucker Act Shuffle Relief Act – passed the House of Representatives this session with strong bipartisan majorities, and the Senate is expected to consider a combined bill. If enacted, this legislation would streamline court procedures, making it easier for private landowners to mount court challenges to burdensome and restrictive regulations.

A Way Out of the Ripeness Maze. At present, a government agency can impose severe restrictions upon the use of private land, and the landowner may be unable to take the government agency to court. This is because federal courts are reluctant to hear a Fifth Amendment claim until the regulatory agency has conclusively and definitively outlined what land uses are prohibited and what uses are allowed. Prior to that point, the case is not "ripe" for judicial review. Indeed, it is estimated that the vast majority of property rights cases filed in federal court are dismissed on ripeness grounds.1 As a result, government bureaucrats can tie up a landowner in permitting processes for years, effectively denying the use of private land without creating a course of action.

Bernadine Suitum, an elderly widow, was a casualty of this ripeness maze. Denied the ability to build a home on her land, she had to take her case all the way to the Supreme Court in order to win the right to merely file a lawsuit. The bittersweet victory for Mrs. Suitum came after six years of litigation which focused solely on the ripeness issue. Following the Supreme Court’s ruling, she can now file suit for the unconstitutional taking of her property. Many other landowners are not so lucky.

H.R. 1534, sponsored by Rep. Elton Gallegly (R-CA), would help landowners like Mrs. Suitum by shortening the unreasonably long administrative process required before courts can consider a Fifth Amendment claim to be ripe for judicial review. Under the bill, a landowner would be able to file a claim in federal court under the Fifth Amendment once a government agency formally rejects a permit application and the landowner has pursued an appeal of the agency’s decision. Thus, the bill would not change the policies or restrict the authority of any land-use agency, either at the federal or local level. But it will ensure that regulatory agencies are more fair to landowners, and that landowners can seek to have their case heard in federal court when an agency restricts the use of their land.

Ending the "Tucker Act Shuffle." Another problem for landowners is that the United States Court of Federal Claims has jurisdiction over claims for compensation, while federal district courts retain jurisdiction over the invalidation of federal regulatory actions. Thus, if a federal agency denies a landowner all reasonable use of her land, the landowner faces a choice – either seek to have the governmental action revoked as a "taking" without just compensation, or seek compensation for the taking in the Court of Claims. The two causes of action cannot be combined; they must each be pursued separately for a landowner to obtain full relief.

The hazard faced by private property owners results from a prohibition under the "Tucker Act" against suing the government on the same claim in two different courts simultaneously. The government attorneys will argue that one court cannot decide on the relief sought until the other court has made a determination upon the relief within its jurisdiction. By playing the two courts against one another, the government can prevent private property owners from reaching the merits of their claim, ‘shuffling’ landowners back and forth for years.

H.R. 992, introduced by Rep. Lamar Smith (R-TX), would grant concurrent jurisdiction to the Court of Claims and the U.S. District Court over claims for monetary relief and claims seeking the invalidation of federal regulations which affect property rights. It allows private landowners the opportunity to choose to pursue both types of claims in either court, thus ending the costly and tedious jurisdictional shuffle, expediting legal claims and conserving judicial resources.

Senate Action. The Senate is preparing to consider combined legislation to address the ripeness maze and eliminate the Tucker Act Shuffle. Unfortunately, opponents of property rights claim these reforms will infringe upon local sovereignty and clog the courts with wasteful legislation. Neither claim is true.

Nothing in either bill changes or expands the Constitutional rights to which all Americans are entitled. The reforms simply facilitate landowners’ efforts to have their day in court when pursuing federal claims under the Constitution. Both the House and Senate bills explicitly preclude landowners from using these measures to pursue inappropriate state-based claims in federal court. State and local laws would not be overturned or voided by these bills.

Landowners are entitled to equitable access to the judicial system, and with the proposed property rights legislation, Congress is attempting to remedy this absence of procedural fairness from modern land-use litigation.


Kimberle E. Dodd ([email protected]) is a student in Environmental Law at the University of Maryland. She is currently a clerk for Loren A. Smith, Chief Judge of the Court of Federal Claims, and is also a former research assistant at the Competitive Enterprise Institute where Jonathan H. Adler ([email protected]) is Director of Environmental Studies.

1Gregory Overstreet, "The Ripeness Doctrine of the Takings Clause: A Survey of Decisions Showing Just How Far FederalCourts Will Go to Avoid Adjudicating Land Use Cases," 10 Journal of Land Useand Environment Law 91 (1994.)