From: cas@bjerknes.colorado.edu (Cathy Smith)
Subject: Re: National parks to be opened to strip mining
Organization: NOAA Climate Research Division
Distribution: usa
Date: Tue, 29 Sep 1992 20:02:20 GMT

In article <1992Sep29.175000.7603@morrow.stanford.edu> AS.MSW@forsythe.stanford.edu (Marc Whitney) writes:
>I don't like the result but I can understand the legal logic.  I
>think!
>
>What seems to have happened was that in establishing the parks, the
>government went through the process of compensating property holders
>of the surface rights.  They did not compensate the holders of
>mineral rights and infact never acquired the mineral rights.
>Essentailly the govt bought the surface but not what lies below the
>surface.  This was thought to be a neat manuveur since the
>government
>controlled the surface, it could simply deny access to the holders
>of
>the rights to the mineral below the surface.  It appeared to be away
>to avoid paying for the rights yet getting the benefits for the
>public.
>
>What has now happened is that it looks like the court sees denying
>access as equivalent to siezure.  If it is siezure, the constitution
>requires compensation.  I don't know Luhan's true motives but the
>alternatives seem to be to pay compensation or permit access (i.e.,
>minning).  Perhaps the prime purpose is not to open up mines but to
>get Congress to fund compensation.
>
>The issue of Parks is only immeadiate issue; the legal theory
>involves rules about how government can behave.  Personally, I have
>sympathy with the court's position.  Suppose the govt decides to
>build a freeway through your neighborhood (let's assume we all agree
>this is a good thing!).  If it routes the freeway by your property
>in a way that prevents access but does not actually touch your
>property they might decide you are not entitled to compensation
>since your property was not siezed.  Yet, your property has become
>un usable.  (BTW, this sort of thing does happen sometimes - it is
>NOT hypothetical.)  The court is currently moving toward a position
>that to deny use is the same as siezure.  (I think the technical
>legalism is to cite the "takings clause" of the Constitution.)
>
>What we are faced with is a re-interpretation of a legal priciple
>that has implications that I see as both beneficial and harmful.
>Yet within the context of the Constitution, I don't see how you can
>have one without the other in this case.
>
>The best resolution, IMHO, is just to have the Congress authorize
>the "taking" of the mineral rights and then pay "just compensation".
> This will be expensive but I expect it could be covered by the
>rounding error in the SL bailout calculations!

A major difficulty in all this is determining what exactly is just
compensation.  A common practice of some who have inholdings is
to threaten to develop the land and then ask for far more money than
the land would be worth if it were outside of a park or wilderness.
This is often done even if they have no intention of developing the
land or if profits from "development" would be small or nonexistent.
In effect, the land has "gained" in value due to the surrounding land
being government owned.  

(In fact, if the "taking" clause in the Constitution
is to be liberally interpreted by the current Court, than perhaps
there should be a "giving" clause whereby people who gain from
government actions should have to give the extra money back.)

Cathy Smith




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cas@noaacrd.colorado.edu
Newsgroups: rec.backcountry,rec.climbing