Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

Supreme Court, U.S.

1)

JAN 2 1992

No. 91-453 Gftivc OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

DAVID H. LUCAS,

Petitioner,

Vv.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent,

On Writ of Certiorari to The

Supreme Court of the State of South Carolina

BRIEF OF

SOUTH CAROLINA POLICY COUNCIL

EDUCATION FOUNDATION

AND

GEORGIA PUBLIC POLICY FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

G. Stephen Parker*

Deborah A. Ausburn

Southeastern Legal Foundation, Inc.

2900 Chamblee-Tucker Rd., Bldg. 4

Atlanta, Georgia 3034]

(404) 458-8313

Attorneys tor Amici Curiae

January, 1992 * Counsel of Record

No. 91-453

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

¢

DAVID H. LUCAS,

Petitioner,

v.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent,

«

On Writ of Certiorari to The

Supreme Court of the State of South Carolina

aunhunetin sian

BRIEF OF

SOUTH CAROLINA POLICY COUNCIL

EDUCATION FOUNDATION

AND

GEORGIA PUBLIC POLICY FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

senciieaiti : rn

G. Stephen Parker*

Deborah A. Ausburn

Southeastern Legal Foundation, Inc.

2900 Chamblee-Tucker Rd., Bldg. 4

Atlanta, Georgia 30341

(404) 458-8313

Attorneys for Amici Curiae

January, 1992 * Counsel of Record

THE SOUTH CAROLINA SUPREME

COURT’S RELIANCE ON A NUISANCE

THEORY CREATES AN_ ERRATIC

STANDARD INCAPABLE OF

PROTECTING INDIVIDUAL CIVIL

EE ee

Il. | ALTHOUGH SOUTH CAROLINA HAS TABLE OF AUTHORITIES

THE POLICE POWER TO PROHIBIT

COASTAL CONSTRUCTION, THE

STATE SHOULD REQUIRE THE

GENERAL PUBLIC RATHER THAN CASES

PRIVATE INDIVIDUALS TO FINANCE

THOSE RESTRICTIONS. ............ 4

Armstrong v. United States, 364 U.S. 40 (1960) ..... 10, 15

Ill. PROPERTY RIGHTS SHOULD BE Beckwith v. Webb’s Fabulous Pharmacies, Inc. ,

PROTECTED AS STRINGENTLY AS 374 So.2d 951 (Fla. 1979), rev’d, 449 U.S. 155 (1980)...

« ; fe. @ |. Serre 16

City of Richmond vy. J.A. Croson Co., U.S. ;

er ar ae eee re rer

CONCLUSION 2. wc ccc ccc ccc cer eresscsens 22

Hadacheck v. Sebastian, 239 U.S. 394 (1915). .........

James Everard’s Breweries v. Day, 265 U.S. 545 (1924) ...

Keystone Bituminous Coal Ass’n v. DeBenedictis,

Se See Ss a oes ee ee ee eee ae

Lucas v. South Carolina Coastal Council,

404 §.E.2d 895 (S.C. 1991),

CE, SOE, Bie es GP COED ow 00. oc 0s ee Hes

Lynch v. Household Finance Corp., 405 U.S. 538 (1972). .

Miles v. Melrose, 882 F.2d 976 (Sth Cir. 1989),

aff'd on other grounds, sub nom, Miles v. Apex

Marine Corp., _ __ U.S. __, 111 S.Ct. 317 (1990) .....

Minnick vy. Mississippi,

U.S. 5 ED s. 3-s 6 6 9-05-63 eres

il iil

Monongahela Navigation Co. v. United States,

SE cc ce cc ence eneves pieswenes 7

Nollan v. California Coastal Commission,

LS rw rr ene te a ee ee ee

Olmstead v. United States, 277 U.S. 438 (1928) ........ 8

Simon & Schuster, Inc. v. Members of

New York State Crime Victims Board,

60 U.S.L.W. 4029 (U.S. Dec. 10, 1991) ............ 8

State Dept. of Agriculture & Consumer Servs. v.

Mid-Florida Growers, Inc. , 505 So.2d 592 (Fla. Dist.

Ct. App. 1987), approved, 521 So.2d 101 (Fla. 1988),

cert. denied, 488 U.S. 870 (1988) .............. 11, 12

United States v. Causby, 328 U.S. 256 (1946) ........ 14

United States v. Lynah, 188 U.S. 445 (1903) ....... 19, 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

a: CI, CO. He cc ccc aeeses 16

16 U.S.C. §§ 1451-1464 (1988) .............000.8. 13

Se a, Oe UE os cc cet eeu es 10

BP ie. © Bees SEO, Ge oc cece neecen 10

S.C. Code Ann. § 48-39-250, et seq. (1990 Supp) .... 6, 11

1V

SECONDARY AUTHORITIES

Blackstone, Commentaries (1765) ................ 18

Ellickson, Suburban Growth Controls: An Economic

and Legal Analysis, 86 Yale L. J. 385 (1977) ......... 14

Epstein, Takings: Private Property and

the Power of Eminent Domain (1985) .......... 9, 17, 18

Insight on the News, December 2, 1991 ............. 8

CPE ec ce kacaencasecseoevess 5

Locke, The Second Treatise of Government

(revised ed. P. Laslett ed. 1965) ................. 17

Pilon, Property Rights, Takings, and a Free Society,

6 Harv. J. L. & Pub. Pol. 165 (1983). ........... 17, 20

Sax, Takings and the Police Power,

ee a EE, ig ce ccc ce ensveseueunss 11

Tarlock, Regulatory Takings,

60 Chi.-Kent L. Rev. 23 (1984) ................. 13

Zalkin, Shifting Sands and Shifting Doctrines:

The Supreme Court’s Changing Takings Doctrine

and South Carolina’s Coastal Zone Statute,

7 Ge Ms Es EP UE woe cw cee cues encsecs 13

No. 91-453

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

¢

DAVID H. LUCAS,

Petitioner,

v.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent,

citi Diicotaiion

On Writ of Certiorari to The

Supreme Court of the State of South Carolina

-

INTEREST OF AMICI

The South Carolina Policy Council Education Foundation

("South Carolina Policy Council") and Georgia Public Policy

Foundation ("Georgia Policy Foundation") submit their brief as

amici curiae in this case. The parties have consented to the filing

of this brief, and their consent letters have been filed with the

Clerk of this Court.

The South Carolina Policy Council and Georgia Policy

Foundation are non-profit research and education foundations.

Their members include more than 500 citizens of South Carolina

and Georgia, including numerous current or former U.S. and state

legislators, local elected officials, and the executive officers of

more than one hundred small businesses, corporations, and trade

associations operating within their respective states.

The South Carolina Policy Council and Georgia Policy

Foundation are organized for the purpose of advancing public

interest viewpoints on legal and public policy questions of

significant concern to the people of South Carolina and Georgia.

Their members believe that the well-being and future hopes of our

nation are best advanced by public policies that spur economic

growth, enhance individual opportunity, empower citizens, and

defend traditional economic principles and social values. In

recognition of this, the two organizations include in their areas of

concern the government's treatment of private property and other

civil rights.

STATEMENT OF THE CASE

Amici South Carolina Policy Council and Georgia Policy

Foundation adopt the statement of the case contained in the brief

of the Petitioner.

to

SUMMARY OF ARGUMENT

The standard established by the Supreme Court of South

Carolina allows the state to declare a traditional, basic use of

property, and hence almost any use, a "serious public harm," even

though the state is not prohibiting that use elsewhere. By using the

“serious public harm" label, the State of South Carolina can avoid

compensating private property owners for any taking of their

property.

Furthermore, the State’s claim that it is protecting the

public is erroneous. South Carolina is not protecting its citizens

from a classic harm, but actually is conferring a benefit on them.

If the state wishes to confer those benefits, it has the power to do

so, but it should place the cost on the citizens benefited, not the

person who invested in the property.

Finally, the protection of property rights was at the core of

the purposes for which our government was formed, and property

rights should be given the same protection as all other civil rights.

THE SOUTH CAROLINA SUPREME COURT’S

RELIANCE ON A NUISANCE THEORY

CREATES AN ERRATIC STANDARD

INCAPABLE OF PROTECTING INDIVIDUAL

CIVIL RIGHTS.

David Lucas spent almost $1 million on 2 beachfront lots

on which he planned to build houses. He did not seek to discharge

pollutants, dredge sand from the seashore, or even operate a

business. He planned to use the lots for the simple purpose for

which they had been appraised, for which real property throughout

time has been employed, and, in fact, for which beachfront lots

adjoining his have been used for years.

Almost two years later, the South Carolina legislature

passed a coastal protection law that, in effect, prohibited Mr.

Lucas from constructing any buildings on his property. The law

wiped out Mr. Lucas’s investment. Nevertheless, the Supreme

Court of South Carolina held that he was not entitled to

compensation because "when a State merely regulates use, and acts

to prevent a serious public harm, there is no ‘taking’ for which

compensation is due." Lucas v. South Carolina Coastal Council,

404 S.E.2d 895, 900 (S.C. 1991), cert. granted, 112 S.Ct. 436

(1991) (emphasis in original).

This holding is troublesome for two reasons. First, the

simple act of building a house has never been considered a

"serious public harm," and South Carolina’s statutory scheme does

not treat it as such. Second, the court creates an open-ended test

by which a government can avoid compensating citizens simply by

giving its activities the correct label.

Building a home, which was the proposed, and originally

appraised, use of the lots, is hardly the "nuisance-like conduct"

that this Court has held to be beyond the protection of the Fifth

Amendment. See, e.g., Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470 (1987) (prohibiting mining that might

cause subsidence); James Everard’s Breweries v. Day, 265 U.S.

545 (1924) (prohibiting sale of malt liquors even for medicinal

purposes); Hadacheck v. Sebastian, 239 U.S. 394 (1915)

(prohibiting brickyards in residential area).

Building a home on one’s own land is one of the most basic

uses of property, and one of the most fundamental rights of

property ownership. Cf., Nollan v. California Coastal

Commission, 483 U.S. 825, 833 n.2 (1987) ("the right to build on

one’s Own property--even though its exercise can be subjected to

legitimate permitting requirements--cannot remotely be described

as a ‘government benefit’"). Building a home is hardly

“unreasonable use of . . . one’s own property, to the detriment,

hurt, annoyance, discomfort, injury, or damage of another."

Joyce, Nuisance § 11 (1906).

Nor does the statutory scheme treat beachfront development

in itself as a classic nuisance. The legislative findings recite great

harm that the government believes has resulted from past

construction on the beaches:

(4) . . . Consequently without adequate controls,

development unwisely has been sited too close to

the system. This type of development has

jeopardized the stability of the beach/dune system,

5

accelerated erosion, and endangered adjacent

property. It is in both the public and private

interests to protect the system from this unwise

development.

(5) The use of armoring in the form of hard

erosion control devices such as seawalls, bulkheads,

and rip-rap to protect erosion-threatened structures

adjacent to the beach has not proven effective.

These armoring devices have given a false sense of

security to beachfront property owners. In reality,

these hard structures, in many instances, have

increased the vulnerability of beachfront property to

damage from wind and waves while contributing to

the deterioration and loss of the dry sand beach

which is so important to the tourism industry.

S.C. Code Ann. § 48-39-250 (1990 Supp).

The statutory scheme proceeds to address these harms of

past construction by prohibiting future construction. S.C. Code

Ann. § 48-39-290 (A) (1990 Supp). Existing structures (which

according to the legislature caused all of the existing harm) may

be replaced, id., § -290 (B)(1)(b)(iv) & (v); repaired, id., § -290

(B)(1)(b)(i); and even expanded, id., § -290 (B)(1)(b)(ii).

The legislative findings do not explain why future

construction on the beaches of South Carolina poses more of a

threat to the environment than do existing structures. Indeed,

insofar as the harm that the legislature wishes to prevent, there is

no principled difference between proposed and existing buildings.

The best way to preserve the coastline no doubt would be to raze

the existing dwellings, or at least prevent them from being repaired

or replaced.

The South Carolina legislature no doubt had powerful

reasons for choosing not to require its constituents to destroy their

homes. Yet those reasons are not sufficient to transform proposed

construction into a nuisance, or to make the damage to Mr. Lucas’

property any less a taking than would be the destruction of an

already existing building.

The South Carolina legislature, then, is not treating coastal

construction as a true "nuisance-like activity." Rather, it is

making arbitrary and politically convenient distinctions between

property owners. It is this placing of disparate burdens that the

Fifth Amendment was designed to prevent. The taking doctrine

prevents the public from loading upon one

individual more than his just share of the burdens of

government, and says that when he surrenders to

the public something more and different from that

which is exacted from other members of the public,

a full and just equivalent shall be returned to him.

Monongahela Navigation Co. v. United States, 148 U.S. 312, 325

(1893). See also, Nollan vy. California Coastal Commission, 483

U.S. 825, 835 n. 4 (1987) ("If the Nollans were being singled out

to bear the burden of California’s attempt to remedy these

problems, although they had not contributed to it more than other

coastal landowners, the state’s action, even if otherwise valid,

might violate either the incorporated Takings Clause or the Equal

Protection Clause").

The specter of thousands of families being required to

destroy their homes in order to protect the environment illustrates

the danger of the test that the South Carolina court has established,

and is not as far-fetched as one might hope. Numerous owners of

homes in Massachusetts that were destroyed by a hurricane this

past summer have been told that they may not rebuild their homes

because of environmental regulations. Insight on the News,

December 2, 1991, at 29. The justification that the state has given

is "safety and health" and prevention of public harm. /d.

It is not clear whether Massachusetts has decided that the

affected homeowners are entitled to compensation. It is clear,

however, that under the South Carolina court’s formulation, the

property owners would receive nothing. If the state decides that

rebuilding a home would be a “threat to the public”, then the

homeowners need not be compensated. No doubt, the property

owners can comfort themselves with the thought that their

homelessness is actually a service to their community.

The danger in this case stems from the South Carolina

court’s uncritical deference to the legislature’s good intentions. -

There is no reason to believe that the legislature was motivated by

anything other than a desire to help the public, but good intentions

are not an adequate protection against abuse of power. As Justice

Holmes once noted, "Experience should teach us to be most on our

guard to protect liberty when the Government’s purposes are

beneficent." Olmstead v. United States, 277 U.S. 438, 479

(1928).

It is never difficult for a government to find noble motives

for its actions. Most infringements on personal liberty are

prompted by quite reasonable, even laudable, impulses. See, e.g.,

Simon & Schuster, Inc. v. Members of New York State Crime

Victims Board, 60 U.S.L.W. 4029 (U.S. Dec. 10, 1991) (state’s

desire to compensate crime victims was laudable, but its efforts

violated the first amendment); Minnick v. Mississippi, U.S.

, 111 S.Ct. 486 (1990) (right to counsel during police

interrogation); City of Richmond v. J.A. Croson Co., U.S.

, 109 S.Ct. 706 (1989) (city’s effort to remedy past

discrimination was nevertheless a violation of the equal protection

clause). The essence of constitutional protection is a declaration

that, no matter how high-minded the goal, there are some things

that a government simply may not do.

This is particularly true in relation to the just compensation

clause. "The police power cannot be interpreted as an unrestricted

grant of state power to act in the public interest, for then the

exception will overwhelm the clause." Epstein, Takings: Private

Property and the Power of Eminent Domain 109 (1985).

That prediction has come true in this case. The South

Carolina high court has so broadly interpreted the police power as

to allow the legislature to nullify the just compensation clause. If

the South Carolina government truly wishes to benefit its citizens,

it can call on those citizens to bear the cost. What it cannot do is

suddenly decree that a fundamental, long-recognized use of

property is now a "nuisance," differentiate between people who

perpetuate the supposed nuisance, and then try to justify itself by

claiming good intentions.

ALTHOUGH SOUTH CAROLINA HAS THE

POLICE POWER TO PROHIBIT COASTAL

CONSTRUCTION, THE STATE SHOULD

REQUIRE THE GENERAL PUBLIC RATHER

THAN PRIVATE INDIVIDUALS TO FINANCE

THOSE RESTRICTIONS.

The issue in this case is not whether South Carolina can

pass legislation to protect the environment. Certainly it is within

a State’s power to protect its natural resources. The question is

who must pay for that protection. The essence of the prohibition

against taking property without just compensation is that the

government may not force "some people alone to bear public

burdens which, in all fairness and justice, should be borne by the

public as a whole." Armstrong v. United States, 364 U.S. 40, 49

(1960). The South Carolina Beachfront Management Act imposes

just such a burden.

The first reason for placing the financial burden of the

Statute on the state’s taxpayers is that the law does not so much

prevent a burden on the public as confer a benefit. There can be

no doubt that environmental issues concern the public at large, and

that laws designed to protect the environment benefit the public.

Funding an affirmative benefit, however, is not the sort of burden

that a government legitimately may impose on its citizens.

The Beachfront Management Act is different from such

traditional environmental laws as prevention of pollution, 33

U.S.C.A. § 1251, et seq. (1986) (Clean Water Act), or protection

of endangered species, 16 U.S.C.A. § 1531, et seq. (1985)

(Endangered Species Act). As explained above, building a

dwelling is not an activity normally considered to harm the public.

Certainly, South Carolina does not consider the structures already

built to be harmful. Rather, the state is placing an affirmative

burden on Mr. Lucas, and requiring that he use his property to

benefit his neighbors, many of whom are enjoying on their

properties the activity that he is forbidden.

This beneficial nature of the statutes can be seen in several

aspects of the program. First, as discussed already, the statute

does not prohibit all activity that it links to environmental harm.

Those people currently damaging the beach through their structures

need not cease that damage. Only certain people, like Mr. Lucas,

need bear the burden of "protecting" the coast.

10

Furthermore, the statute is designed to do more than protect

the environment. One of the major concerns of the legislative

findings is the "tourism industry that generates approximately two-

thirds of South Carolina’s annual tourism industry revenue which

constitutes a significant portion of the state’s economy." S.C.

Code Ann. § 48-39-250 (1)(b) (1990 Supp). The prohibited

erosion control devices have contributed "to the deterioration and

loss of the dry sand beach which is so important to the tourism

industry." $.C. Code Ann. § 48-39-250 (5) (1990 Supp). One of

the state’s goals is to preserve “dry sand beaches which provide

recreation and a major source of state and local business revenue."

S.C. Code Ann. § 48-39-269 (1)(b) (1990 Supp).

This concern with maximizing economic benefits for a

particular industry fits squarely within the category that Professor

Joseph Sax has described as the “enterprise function" of

government. Sax, Takings and the Police Power, 74 Yale L. J. 36

(1964). Such activities serve to promote the public welfare, not

protect it from harm, and as such are compensable takings.

The District Court of Appeal of Florida noted this

distinction between preventing a harm and conferring a benefit in

State Dept. of Agriculture & Consumer Servs. v. Mid-Florida

Growers, Inc., 505 So.2d 592 (Fla. Dist. Ct. App. 1987),

approved, 521 So.2d 101 (Fla. 1988), cert. denied, 488 U.S. 870

(1988). The State of Florida had required a citrus nursery to

destroy some of its stock. Although the citrus budwood to be

destroyed was healthy, the plaintiff had bought it from another

nursery where the state discovered citrus canker. After the state

burned the trees, the nursery sued for compensation.

The District Court of Appeal held that the state’s action,

which it termed “a valid exercise of police power," caused a taking

of property. Jd. at 595. The court made a distinction between

11

destroying diseased property, which is "a source of public danger,"

id., and destroying healthy stock "to protect public health, safety

or welfare." Jd. The court noted the danger of citrus canker, and

the difficulty in determining whether healthy trees carried the

disease. The court concluded:

Destruction of the healthy trees, however, assured

the continued vitality of Florida’s most valuable

citrus industry. Because destruction of the healthy

trees benefitted the entire citrus industry and, in

turn, Florida’s economy, the cost is more properly

spread among the many rather than the few who

were unfortunate enough to have purchased

budsticks from the infected nursery.

Id. at 595-96. The Florida Supreme Court approved this

reasoning, noting its view that "if a regulation creates a public

benefit it is more likely to be a taking." Mid-Florida Growers,

Inc., 521 So.2d at 103.

The house that Mr. Lucas proposes to build is analogous to

the healthy trees in Mid-Florida Growers, Inc. The house itself

would not be dangerous, and would not discharge noxious

substances onto anyone else’s property. The state wants to restrain

Mr. Lucas simply because it wants to confer a benefit on the

shoreline, the tourism industry, and South Carolina’s economy.

Admittedly, the distinction between preventing a harm and

conferring a benefit is not always a clear one. The principle,

however, does have strong roots in our law. For example, tort

law long has distinguished between the duty to refrain from

harming someone, and the duty to affirmatively help them. Cf,

Miles v. Melrose, 882 F.2d 976, 992 (Sth Cir. 1989) (noting

differing duties placed on person controlling machinery and a

bystander merely observing the danger), aff'd on other grounds,

12

sub nom, Miles v. Apex Marine Corp., __ U.S. __, 111 S.Ct.

317 (1990).

The distinction between harm and benefit, as fuzzy as it is,

certainly offers more clarity than the current state of takings law.

As one commentator has noted, "[A]t the present time the harm-

benefit test offers the best hope, despite all the difficulties of its

application, of making sense out of the cases." Tarlock,

Regulatory Takings, 60 Chi.-Kent L. Rev. 23, 37 (1984).

A second reason for placing the financial burden of the

Beachfront Management Act on the state is that when the public

receives a benefit from an individual, the public should pay for it.

State governments currently face various budget crises and

taxpayer dissatisfaction. If citizens do wish to protect the

environment, however, they will be willing to bear the cost. It is

not the proper function of state government to paternalistically

decide that a program is good for the public, and then hide the

cost by imposing it on a small group of citizens. A government

that possesses the coercive power to raise money can hardly claim

that its individual citizens are better able to fund programs that the

government deems desirable.

It is no accident that many states enacted coastal protection

acts after Congress authorized federal funds for such programs.

Coastal Zone Management Act of 1972, Pub. L. No. 92-583, 86

Stat. 1280, codified as amended, 16 U.S.C.A. §§ 1451-1464

(1988). See also, Zalkin, Shifting Sands and Shifting Doctrines:

The Supreme Court’s Changing Takings Doctrine and South

Carolina’s Coastal Zone Statute, 79 Cal. L. Rev. 205, 216-18

(1991) (listing states that have enacted coastal protection laws). It

seems hardly fair for a government to establish such a program

using another group’s funds, and then face no liability for its

decisions.

13

Finally, requiring the state to pay compensation serves the

very important function of deterring legislatures from

experimenting at the expense of others. "When municipal officials

are able to deflect the costs of a public measure to those who lack

the right to vote in municipal elections (or who are vastly

outnumbered at the polls), a rule requiring compensation by

shifting the costs back to the electoral majority, may help induce

these officials to weigh more accurately the costs and benefits of

alternative measures." Ellickson, Suburban Growth Controls: An

Economic and Legal Analysis, 86 Yale L. J. 385, 420 (1977).

All too often, legislatures decide on a particular program

for reasons only distantly related to the public good. At other

times, a legislature will sincerely intend to benefit the public, but,

as this nation discovered during Prohibition, the laws will miss

their mark. It is always easier to gamble with someone else’s

money than with your own.

If the government of South Carolina is convinced that

prohibiting future construction is necessary to protect its coastline

and tourism industry, and that that goal is an important one, then

it should back its plan with its own money. If the state does not

believe in a program enough to put it in the budget, then it should

not put it in the statute books.

In this case, the State of South Carolina has chosen to reap

the benefits of "complete dominion and control over the surface of

{[Mr. Lucas’] land," United States v. Causby, 328 U.S. 256, 262

(1946), without bearing any of the resulting responsibility. South

Carolina has in effect forced Mr. Lucas to make a $1 million

donation to the coastline protection and tourism industry in that

State.

If Mr. Lucas had invested his money in a savings account

and the state appropriated it, the law would call that theft,

14

regardless of the state’s motives. The fact that Mr. Lucas invested

his money in land instead of a bank does not give the state any

greater right to high-handedly wipe out his investment. This

Court’s description of the government’s taking in Armstrong v.

United States, 364 U.S. 40 (1960), applies equally to this case:

The total destruction by the Government of all value

of [this property] has every possible element of a

Fifth Amendment "taking" and is not a mere

"consequential incident" of a valid regulatory

measure. Before the [property value was]

destroyed, [Mr. Lucas] admittedly had compensabie

property. Immediately afterwards, [he] had none.

This was not because [his] property vanished into

thin air. It was because the Government for its own

advantage destroyed the value of the [property] . .

Id. at 48.

As in Armstrong, if the government believes it

advantageous to destroy the value of Mr. Lucas’s property, then

the government should pay for that advantage.

1S

iil.

PROPERTY RIGHTS SHOULD BE

PROTECTED AS STRINGENTLY AS OTHER

CIVIL RIGHTS.

In the final analysis, this Court must determine what place

property rights have in the constitutional hierarchy. The right to

just compensation is part of the Fifth Amendment, which also

provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, . . . nor shall any

person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; ....

U.S. Constitution, Amend. V.

This Court has built strong protections around such Fifth

Amendment rights as the prohibition against self-incrimination and

double jeopardy. If the State of South Carolina were to claim that,

because of budget constraints, it could no longer provide for grand

jury indictments of those accused of environmental crimes, federal

courts would be swift to announce that neither an admirable

concern for the environment nor the realities of fiscal problems

would justify deprivation of such a basic right. The response

would be similar to infringements on other rights, such as free

speech or the right to counsel, no matter how loudly the state

16

proclaimed its desire to protect the environment.

Yet, the South Carolina court has allowed the state to

deprive a man of his property in the name of environmentalism

and tourism. This decision short-changes one of our basic

personal liberties. Property rights are certainly as important as

every other civil right, and should be treated as such.

In fact, property well may be considered the foundation for

the other civil rights that we enjoy. John Locke, whose writings

influenced the leaders of the American Revolution and the framers

of the Constitution more than any other single philosopher,

described the preservation of property as "the end of government,

and that for which men enter into society." John Locke, Of Civil

Government 4 138, quoted in Epstein, Takings: Private Property

and the Power of Eminent Domain 14 (1985). Locke even went

so far as to say, “Lives, Liberties, and Estates, which I call by the

general Name, Property." Locke, The Second Treatise of

Government § 123 (revised ed. P. Laslett ed. 1965) (emphasis in

original).

Locke’s view found its way into both the English common

law and the Enlightenment that generated our government. Private

property and a free society were "so intimately connected as to be

all but equivalent." Pilon, Property Rights, Takings, and a Free

Society, 6 Harv. J. L. & Pub. Pol. 165, 168 (1983).

This Court has recognized the interplay between property

rights and other civil rights. "The right to enjoy property without

unlawful deprivation, no less than the right to speak or the right to

travel, is in truth, a ‘personal’ right, whether the ’property’ in

question be a welfare check, a home, or a savings account. In

fact, a fundamental interdependence exists between the personal

right to liberty and the personal right in property. Neither could

have meaning without the other." Lynch v. Household Finance

17

Corp., 405 U.S. 538, 552 (1972).

Like other civil rights, property rights include the authority

to dominion and use as one sees fit. "There is nothing which so

generally strikes the imagination, and engages the affections of

mankind, as the right of property; or that sole and despotic

dominion which one man claims and exercises over the external

things of the world, in total exclusion of the right of any other

individual in the universe." W. Blackstone, Commentaries 2

(1765). Those rights of dominion, however, aiways have been

limited by "the laws of the land," id., to the extent that those laws

are legitimate.

Government exercise of power, in a _ representative

government, is legitimate only so long as it is compatible with the

source of its authority -- the individuals whom the government

rules. As Locke expressed it, a legislature is "but the joint power

of every member of the society given up to that person or

assembly." Locke, Of Civil Government 4 19 (1690), quoted in

Epstein, Takings at 12. Thus, a government has no more power

than individuals can transfer to it.

For example, government has the right to punish thieves

because its citizens have transferred that right. No individual,

however, has the right to be a thief; therefore, the government has

no right to “take away from any man any part of his property

without his consent." /d.

Eminent domain is an exception to that general principle.

When the state takes private property for public use, it is a forced

transaction, pure and simple. It cannot be justified under any of

the traditional powers of government. A person whose property

is taken is rarely harming others; he is simply enjoying property

that, because of location or other factors, the government happens

to want.

18

The only justification for eminent domain is that of

necessity. Because of the circumstances in a given case, society

will cease to function in one respect or another if a given

individual does not yield his rights in his property. "All private

property is held subject to the necessities of government. The

right of eminent domain underlies all such rights of property."

United States v. Lynah, 188 U.S. 445, 465 (1903).

Thus, the state, acting on behalf of the majority, can

override the rights of a minority. In those exceptional cases,

however, such raw exercises of power are made palatable only by

just compensation from the majority to the minority for the lost

rights:

The government may take personal or real property

whenever its necessities, or the exigencies of the

occasion, demand. So, the contention that the

government had a paramount right to appropriate

this property may be conceded, but the Constitution

in the Sth Amendment guarantees that when this

governmental right of appropriation--this asserted

paramount right--is exercised it shall be attended by

compensation.

Id.

The only way to take property without compensation is to

change the terms of the equation--for example, to deny that what

the person held was "property," e.g., Beckwith v. Webb's

Fabulous Pharmacies, Inc. , 374 So.2d 951 (Fla. 1979) (state could

appropriate interest on money deposited in interpleader fund

because such interest was public money, not private property),

rev'd, 449 U.S. 155 (1980). In this case, there can be no doubt

that what Mr. Lucas held was private property. What the South

Carolina government has attempted to do is change other terms of

19

the equation--to deny that Mr. Lucas actually has rights in that

property.

The state legislature decided that “the economic and social

improvement of the coastal zone and of all the people of the

State," S.C. Ann. § 48-39-30 (A), requires overriding Mr. Lucas’s

traditionally-recognized rights in his property. Essentially, South

Carolina has taken away from Mr. Lucas the rights to enjoy his

property, and transferred those rights to tourists and sightseers.

The fact that the state has left title to the land with Mr. Lucas is

irrelevant. “While the government does not directly proceed to

appropriate the title, yet it takes away the use and value; when that

is done it is of little consequence in whom the fee may be vested."

United States v. Lynah, 188 U.S. 445, 470 (1903).

Although the state certainly has the power to transfer those

rights, it does not have the right to do so, at least in a

representative system of government. Mr. Lucas has done and

proposes to do nothing that will harm his neighbors. He has done

nothing to otherwise forfeit his rights to the enjoyment of his

property. The state simply has decided that it prefers to grant his

rights to other people. In short, the state has appropriated Mr.

Lucas’s past efforts and investment decisions, and is using him for

its own ends. See, e.g., Pilon, supra p. 14, at 175-178. That

process simply is not compatible with a society that values

individual liberties.

This case falls within the outlines of the classic eminent

domain situation. The state wants control over Mr. Lucas’

property not because of what he wants to do with it, but because

of where the property is located. Mr. Lucas’ proposed use of his

property would not harm others, unless in an indirect way that is

currently permitted to thousands of his fellow citizens. Rather, the

state simply has decided that it wants Mr. Lucas to use his

beachfront property in a certain way.

Perhaps the state is correct in its belief that it is acting out

of necessity. Even necessity, however, can be justified only if

Mr. Lucas receives an adequate substitute for his property rights.

Otherwise, this case is nothing more than a raw exercise of

government power without even lip service to the individual rights

that have been one of this country’s most valued contributions to

the world.

This case presents this Court with the opportunity to

declare whether property rights have equal stature with all other

constitutional rights, or whether they are simply an interesting

nostalgic footnote. The interpretation of the Supreme Court of

South Carolina, if it stands, will relegate traditional property rights

to the pages of history books, where they will become merely a

backdrop for the state’s power to legislate without liability.

CONCLUSION

For all of the foregoing reasons, amici respectfully request

that this Court reverse the decision of the Supreme Court of the

State of South Carolina.

Respectfully Submitted,

G. Stephen Parker,

Counsel of Record

Deborah A. Ausburn

Southeastern Legal Foundation, Inc.

2900 Chamblee-Tucker Rd., Bldg. 4

Atlanta, GA 30341

(404) 458-8313

Attorneys for Amici Curiae

January, 1992

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