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STATE OF PROPERTY RIGHTS IN AMERICA TEN 

YEARS AFTER KELO V. CITY OF NEW LONDON 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JULY 9, 2015 

Serial No. 114–37 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

JULY 9, 2015 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 3 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Dan Alban, Attorney, Institute for Justice 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

John M. Groen, Principal Attorney, Pacific Legal Foundation 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

John D. Echeverria, Professor of Law, Vermont Law School 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Brian Seasholes, Director, Endangered Species Project, the Reason Foundation 

Oral Testimony ..................................................................................................... 52 

Prepared Statement ............................................................................................. 54 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Questions for the Record from John D. Echeverria, Professor 

of Law, Vermont Law School .............................................................................. 82 

(1) 

STATE OF PROPERTY RIGHTS IN AMERICA 

TEN YEARS AFTER KELO V. CITY OF NEW 

LONDON 

THURSDAY, JULY 9, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:26 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, DeSantis, King, Jordan, Cohen, and Conyers. 

Staff Present: (Majority) Zachary Somers, Counsel; Tricia White, 

Clerk; (Minority) James J. Park, Minority Counsel; Veronica Eligan, Professional Staff Member; and Alayna James, Law Clerk. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. And without objection, the Chair is authorized to declare recesses of the Committee at any time. And I’ll 

begin with my opening statement. We welcome all of you here this 

afternoon. 

Ten years ago last month, the Supreme Court handed down its 

now infamous decision Kelo v. City of New London. In that decision 

the Court held that the government may use its power of eminent 

domain to take property from homeowners and small businesses 

and to transfer it to other private entities for economic development purposes. 

In Justice O’Connor’s words, the Kelo decision pronounced that, 

‘‘Under the banner of economic development, all private property is 

now vulnerable to being taken and transferred to another private 

owner, so long as it might be upgraded.’’ ‘‘Nothing is to prevent a 

State from replacing any Motel 6 with a Ritz-Carlton, any home 

with a shopping center, or any farm with a factory.’’ 

The Kelo decision was resoundingly criticized from across all 

quarters. In the aftermath of the decision, the House voted to express grave disapproval of the decision and overwhelmingly passed 

the Private Property Rights Protection Act to attempt to legislatively reverse the harmful effects of that decision. 

Last Congress, the House once again passed this legislation with 

353 Members voting in favor and only 65 Members voting against. 
2 

Hopefully, during this Congress the Private Property Rights Protection Act will finally become law. 

Too many Americans have lost homes and small businesses to 

eminent domain abuse, forced to watch as private developers replace them with luxury condominiums and other upscale uses. Congress must act to restore Americans’ faith in their ability to build, 

own, and keep their property without fear that the government will 

take it and give it to someone else. 

Unfortunately, the Court’s decision in Kelo is not the only threat 

to property rights in America today. In addition to eminent domain 

abuse, Americans’ property rights are regularly threatened by regulatory actions and land use restrictions that deprive them of the 

use of their property, often without providing any compensation at 

all. 

These so-called regulatory takings limit property owners’ use of 

their property to such a degree that the regulation effectively takes 

away most of the value of the property. Yet, unlike in many eminent domain cases, in regulatory takings cases the government 

rarely volunteers to compensate for the full financial impact the 

regulatory taking has on the value of the property. Property owners are then forced, often at great expense, to go to court to attempt to vindicate their property rights. 

Of additional concern is a series of Supreme Court decisions that 

have effectively barred the Federal courthouse doors to virtually all 

takings claims involving State and local governments. Because of 

these precedents, it is nearly impossible for property owners to file 

suit in Federal court alleging that a State or local government effected a taking of their property in violation of the Federal Constitution. 

I can think of no other instance in which American citizens are 

denied access to the Federal courts to vindicate their Federal constitutional rights. It’s disconcerting that property rights claims are 

singled out to be confined to State court. 

These are but a few of the issues that property owners face in 

America today. Although there have been several property rights 

victories in the Supreme Court since Kelo was decided, including 

the Court’s recent holding that the government must pay just compensation when it takes personal property, just as when it takes 

real property, property rights in America remain at risk despite the 

Constitution’s clear protections for these important rights. 

As Chief Justice Rehnquist observed over two decades ago, there 

is ‘‘no reason why the Takings Clause of the Fifth Amendment, as 

much a part of the Bill of Rights as the First and Fourth Amendments, should be relegated to the status of a poor relation.’’ 

So we’ve called today’s hearing to examine the current state of 

property rights in America 10 years after the Kelo decision. I hope 

the witnesses can help inform us of how property rights are faring 

in the courts and in the face of increasing government regulation. 

The protection of property rights lies at the foundation of American government. John Adams wrote over 200 years ago that property must be secured or liberty cannot exist. Thus, if our children 

are to live truly in a free society, we must now work to substantially undergird and secure the critical property rights guaranteed 

to all Americans by the United States Constitution. 
3 

And with that, I will now yield to the Ranking Member for his 

opening statement. 

Mr. COHEN. Thank you, Mr. Chair. 

The Latin word for city is civitas. Civitas it also is also the root 

word for civilization, and there is good reason for that. Cities are 

where civilization happens. It is in cities that we have vibrant hubs 

of commerce, finance, and trade. It is in cities where people from 

different backgrounds, people from different regions of a country, 

immigrants from all over the world meet to do business and get to 

know each other. It is in cities where media, entertainment, creativity, and artistic expression meld to form both popular culture 

and high culture. 

In our own country, city are where the supreme expressions of 

American ideals and optimism happen, the melting pot, John Winthrop’s shining city upon a hill, which Ronald Reagan used on occasion. 

Yet American cities have not fared well since the Second World 

War. For decades they suffered from White flight, where White 

residents fled as racial integration threatened exclusively White 

neighborhoods. Over time, White flight became wealth flight, as 

people of all backgrounds and races with the means to leave the 

city did so, leaving cities with financially poor populations, rising 

crime, and shrinking tax basis, which led to further flight by those 

who had the financial means to leave, which led to further disinvestment. 

As a result of decades of this vicious cycle, our cities are hurting. 

Given the central role of cities as the engines of commerce and 

fonts of culture and ideas, it is important that we bring cities back, 

and the use of eminent domain for economic redevelopment is one 

potentially important tool for doing so. 

While I do not necessary endorse or oppose eminent domain as 

the best means for revitalizing the cities, I also think it is appropriate for the Supreme Court in Kelo v. City of New London to 

leave it to States and localities to make that call for themselves. 

This is because States and local governments are in the best position to understand local conditions and local needs. This is also 

why in a vast continental-size country like ours we have a Federal 

system that leaves many policy judgments up to State and local 

governments. 

In criticizing the Kelo decision many people have inappropriately 

and unhelpfully blurred the distinction between two different questions: Whether using eminent domain for economic development is 

a good idea or a bad idea on the one hand and whether courts or 

an elected legislature at the Federal, State, or local level should 

make the decision as to the first question on the other. 

Relying on decades of precedent, Kelo appropriately held that a 

city could use eminent domain for the public purpose of economic 

redevelopment. I am sensitive to the fact that eminent domain can 

be abused. For instance, historically it had been used to target minority communities. So happens minority communities are often 

those in the cities where the development would be taking place. 

But eminent domain for economic development can help some of 

the very same marginalized communities as urban ills fall disproportionately on those communities. And in Kelo itself, the Court 
4 

made clear that there are constitutional limits to the use of eminent domain. But eminent domain is a longstanding governmental 

power, and the Court appropriately reviews exercise of such power 

deferentially. 

Finally, those that would deny the use of eminent domain for 

economic redevelopment have an obligation to support funding for 

measures that will help revitalize our cities. We need increased investment in mass transit, including new light rail and bus rapid 

transit system, and we need those improvements now. We need improvements to existing transportation infrastructure like bridges, 

tunnels, and roads, and we need them now. 

We need stronger enforcement of fair housing laws to ensure 

equal housing opportunity for urban residents, and we need that 

now. We need more funding for our public schools so that children 

can get a good education without forcing families out of the cities, 

good public education now. To help cities improve their economies 

and to restore their central role in American life we must do all 

we can to ensure that revitalization. 

And I yield back the balance of my time. 

Mr. FRANKS. I thank the gentleman. 

And I would now yield to the Chairman of the full Committee, 

Mr. Goodlatte from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Private ownership of property is vital to our freedom and our 

prosperity and is one of the most fundamental principles embedded 

in the Constitution. The Founders realized the importance of property rights by enshrining property rights protections throughout 

the Constitution, including in the Fifth Amendment, which provides that ‘‘private property’’ shall not ‘‘be taken for public use 

without just compensation.’’ 

However, despite the Constitution’s robust protection for private 

property rights, today Federal, State, and local governments trample on Americans’ property rights every day in countless ways. 

Local governments exact exorbitant fees from developers in exchange for permits, increasing Federal and State regulations prohibit Americans from using their property as they traditionally 

have, and after the Kelo v. City of New London case, the government is free to seize homes, small businesses, and family farms, 

and transfer the land to others for private economic development. 

The Kelo decision in particular was met with widespread criticism across the political and socioeconomic spectrum. This controversial ruling expanded the ability of State and local governments to exercise eminent domain powers to seize property under 

the guise of economic development when the public use is as incidental as generating tax revenues or creating jobs. 

As the dissenting justices observed, by defining public uses so expansively the result of the Kelo decision is ‘‘effectively to delete the 

words ’for public use’ from the Takings Clause of the Fifth Amendment . . . The specter of condemnation hangs over all property 

. . . The government now has license to transfer property from 

those with few resources to those with more. The Founders cannot 

have intended this perverse result.’’ 

In the wake of this decision, State and local governments can use 

eminent domain powers to take the property of any individual for 
5 

nearly any reason. Cities may now bulldoze homes, farms, churches, and small businesses to make way for shopping malls or other 

developments. 

Hopefully, in this Congress we will finally be able to enact legislation to reverse the harmful affects of the Kelo decision. No one 

should have to live in fear of the government snatching up their 

home, farm, or business so that another richer, better-connected 

person may live or work on the land they used to own. 

Eminent domain abuse is not the only troubling aspect of the 

state of property rights in America today. Regulatory takings— 

takings in which rather than physically invading a property owner’s land, the government accomplishes the equivalent by severely 

restricting the use of property—are also wrongfully depriving owners of their property. As Federal, State, and local regulations increase both in scope and number, regulatory takings will only become more of a problem for property owners. 

Under current law it is exceedingly difficult for property owners 

to recover the losses that result from regulatory takings, and thus 

property owners must bear the full costs of any public benefits that 

these regulations may create. However, as the Supreme Court has 

observed, the Just Compensation Clause is designed to ‘‘bar government from forcing some people alone to bear public burdens 

which in all fairness and justice should be borne by the public as 

a whole.’’ 

Unfortunately in the vast majority of regulatory takings cases, 

the property owner ends up receiving no compensation for the taking. In fact, according to one study, property owners prevailed in 

less than 10 percent of all regulatory takings cases. These are troubling statistics given the fundamental nature of property rights 

under our Constitution. 

I look forward to the witnesses’ testimony on this important subject. The Supreme Court observed in a 1795 opinion that ‘‘possessing property and having it protected is one of the natural, inherent, and unalienable rights of man . . . The preservation of 

property then is the primary object of the social compact.’’ 

I hope the witnesses can provide their insight into whether this 

primary object of the Constitution is being met in America today. 

Thank you, Mr. Chairman. 

Mr. FRANKS. And I thank the gentleman. 

And I now yield to the Ranking Member of the Committee, Mr. 

Conyers, for his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

And welcome to all of the witnesses. 

In the wake of the Supreme Court’s decision in Kelo, I expressed 

concern that States and municipalities could use this decision to 

use their power of eminent domain, intentionally or not, to the detriment of those who are the least politically powerful, namely, the 

poor, the elderly, and minority communities. 

While the power of eminent domain can and historically has been 

abused, we should allow the States to craft their responses rather 

than impose potentially awkward and one-size-fits-all Federal legislative responses. Nonetheless, we should keep the following in 

mind as we consider property rights and the Constitution this 

afternoon. 
6 

To begin with, abuse of the eminent domain power has a long 

and shameful history of disproportionately impacting minority and 

other politically marginalized communities. Urban neighborhoods 

that lacked institutional and political power were often designated 

as blighted areas, slated for redevelopment through urban renewal 

programs. 

And properties were condemned and land was turned over for 

private parties, sometimes for what seemed like primarily private 

benefit. In Detroit, for example, a vibrant working class neighborhood called Poletown was condemned in order to build an automobile plant that was later shut down only a few years after opening, demonstrating firsthand how eminent domain can lead to bad 

outcomes. 

This underscores why it is important that we continue to monitor 

the facts on the ground to determine whether Federal action is 

warranted. If the States do not continue to act to protect citizens, 

Congress should remain ready, willing, and able to do so. 

Having said this, it’s important to respect principles of federalism before Congress intervenes in eminent domain decisions, 

an area traditionally reserved to States and localities. 

In Kelo, the Supreme Court made clear that States are free to 

revise their laws accordingly to restrict the use of eminent domain 

and most have done so. I’m encouraged that at least 43 States have 

followed that advice and taken steps to limit their own powers of 

eminent domain to guard against potential abuse. For example, in 

2006 Michigan voters approved an amendment to their State constitution to preclude takings for economic development or tax enhancement, among a number of other protections for property owners and tenants. 

Given the fact that our system of federalism appears to be working and that most States, by and large, have acted to prevent potential abuse in response to Kelo, Federal intervention is unnecessary and inappropriate at this time. And it’s also for this reason 

that I voted against legislation considered only in the last Congress 

that would have imposed draconian penalties on States and localities for exercising their eminent domain power for economic redevelopment. 

And finally, with respect to the issue of regulatory takings, I note 

that courts have generally and appropriately made it very difficult 

for property owners to prevail in such types of cases, for any other 

result would make it exceptionally difficult for government to regulate. I suspect that’s precisely the result that most who oppose government regulation generally and environmental regulation in particular might want. And perhaps they can take solace in the fact 

that the last four Takings Clause decisions by the Supreme Court 

came out in favor of the property owner. 

We should, however, be very wary of courts undermining implementation of environmental laws and other public health, safety, 

and welfare regulations by giving an overly broad interpretation of 

the Takings Clause to require compensation in any but the most 

extreme and rare circumstances. 

And so I welcome this discussion this afternoon. And I yield back 

the balance of my time. 
7 

Mr. FRANKS. And I thank the gentleman. And all other Members’ 

opening statements, without objection, will be made part of the 

record. 

So let me now introduce our witnesses. Our first witness is Dan 

Alban, an attorney at the Institute for Justice, a nonprofit public 

interest law firm that represents people whose rights are being violated by the government. In 2005, the Institute for Justice represented Susette Kelo in her Supreme Court challenge of the taking of her home in New London, Connecticut. Mr. Alban litigates 

cases protecting free speech, property rights, economic liberty, and 

other individual liberties in both Federal and State courts. 

Glad you’re here, sir. 

Our second witness is John Groen, an attorney at the Pacific 

Legal Foundation, the country’s oldest public interest legal organization that litigates for property rights, limited government, and 

free enterprise. Mr. Groen has extensive experience in public policy 

litigation before all levels of Federal and State courts. He has been 

directly involved in many of the leading appellate decisions that 

have shaped land use law in State of Washington and has significant experience before the U.S. Court of Federal Claims in takings 

cases against the Federal Government. 

Welcome, sir. 

Our third witness, John Echeverria, a professor of law at 

Vermont Law School, where he teaches property, public law, and 

a wide range of environmental and natural resource law courses. 

Prior to joining the Vermont Law School faculty in 2009, he was 

for 12 years the executive director of the Georgetown Environmental Law and Policy Institute at Georgetown University Law 

Center. Professor Echeverria has also served as general counsel of 

the National Audubon Society and general counsel and conservation director of American Rivers. 

Welcome, sir. 

Our final witness is Brian Seasholes, director of the Endangered 

Species Project at Reason Foundation, a nonprofit foundation that 

produces nonpartisan public policy research on a variety of issues 

and publishes the critically acclaimed Reason magazine. Mr. 

Seasholes worked deals with wildlife and land use issues, especially the Endangered Species Act, property rights, wildlife conservation, the effects of wind and energy on wildlife and oil sands. 

Mr. Seasholes’ writing have appeared in Forbes, National Review, 

The Christian Science Monitor, and the Washington Times. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety, and I would ask each witness to summarize his or her testimony in 5 minutes of less. 

And to help you stay within that time there is a timing light in 

front of you. The light will switch from green to yellow indicating 

that you have 1 minute to conclude your testimony. When the light 

turns red, it indicates that the witness’ 5 minutes have expired. 

Now, before I recognize the witnesses, it is the tradition of the 

Subcommittee that they be sworn. So if you would please stand to 

be sworn. 

Do you solemnly swear that the testimony that you are about to 

give will be the truth, the whole trust, and nothing but the truth, 

so help you God? 
8 

You may be seated. 

Let the record reflect that the witnesses answered in the affirmative. 

So now I would recognize the our first witness, Mr. Alban. And, 

sir, if you’ll make sure that microphone is turned on. 

TESTIMONY OF DAN ALBAN, ATTORNEY, 

INSTITUTE FOR JUSTICE 

Mr. ALBAN. Thank you, Chairman Franks and the Ranking 

Members. I appreciate the opportunity to testify regarding eminent 

domain abuse, an important issue that has received significant national attention as a result of the Supreme Court’s infamous decision 10 years ago in Kelo v. City of New London. 

My name is Dan Alban, and I’m attorney at the Institute for Justice, a nationwide, nonprofit public interest law firm that represents people whose constitutional rights are violated by the government. Among the cases we litigate are cases where homes or 

small businesses are taken by the government through the power 

of eminent domain and transferred to another private party who is 

usually wealthier or better connected. 

I have represented property owners across the country, from a 

nonprofit youth boxing center in National City, California, to an elderly piano tuner in Atlantic City, New Jersey, all of whom are 

fighting this abuse of the eminent domain power. 

Perhaps most notably, we represented the homeowners in Kelo v. 

City of New London, the notorious 2005 case in which the U.S. Supreme Court ruled 5-4 that eminent domain could be used to transfer perfectly fine private homes and businesses to a private developer based simply on the promise of increased tax revenue for the 

city. 

But 10 years later, and after $80 million in taxpayer money was 

spent, the Fort Trumbull neighborhood where Susette Kelo’s little 

pink house once stood is a barren field that is home to nothing but 

feral cats. The developer abandoned the project, while Pfizer, the 

intended beneficiary, closed its plant and left New London. 

On Kelo’s 10th anniversary in late June, law professors and legal 

observers described the decision as ‘‘truly horrible,’’ ‘‘one of the 

most destructive and appalling decisions of the modern era,’’ and 

‘‘the worst Supreme Court decision of the 21st century.’’ Overwhelming majorities in every major poll taken after Kelo have condemned the result, and it continues to be wildly unpopular 10 

years later. 

In the wake of Kelo, 44 States reformed their eminent domain 

laws, but these State-level reforms vary greatly. Some States did 

little or nothing to reform their laws, and Kelo opened the flood 

gates for eminent domain abuse, which tripled in the year after the 

decision was issued. That’s in part because Federal law still allows 

Federal funds to be spent for condemnations for the benefit of private developers, which continues to encourage widespread eminent 

domain abuse, as I detail in my written testimony. 

The Federal Government should not be complicit in an abuse of 

power already deemed intolerable by most States. Congress should 

take action to prevent Federal tax dollars from funding projects 
9 

that abuse the power of eminent domain by taking private property 

from one person to give to another private party. 

Unfortunately, Congress’ previous efforts to restrict the use of 

Federal funds for eminent domain have been ineffective. Immediately after Kelo was decided in 2005, Senator Christopher Bond 

introduced an appropriations bill amendment which stated that 

Federal dollars could not be spent on any project where eminent 

domain is used for economic development that primarily benefits 

private entities. This language continues to appear in appropriations bills, including the currently pending bill. 

But the Bond amendment has no enforcement mechanism, and 

thus relies on agencies and grant recipients to police themselves. 

There is no way for individuals to enforce the spending restriction, 

and it doesn’t appear that any agency has ever investigated or enforced a violation of the spending limitation. 

Funding restrictions like the Bond amendment will only work if 

they can be enforced. Any Federal reform must include an enforcement mechanism to halt Federal funding if the funds are used for 

a prohibited purpose, as well as a private method of enforcement 

so that homeowners, tenants, or small business owners who are 

threatened by the abuse of eminent domain can take action to prevent the misuse of Federal funds. 

Reform at the Federal level would not only reduce funding for 

eminent domain abuse nationwide, but it also would send an important message to the American people. When the power of eminent domain is used so that a richer, better-connected person can 

live or work on the land you used to own, it tells everyday Americans that their hopes, dreams, and hard work do not matter as 

much as money and political influence. 

Commercial developers everywhere need to be told that they can 

only obtain property through private negotiation, not government 

force, and that the Federal Government will not be a party to these 

forced private-to-private transfers of property. 

This Committee is to be commended for continuing to examine 

this misuse of government power, which violates the property 

rights of many Americans. I encourage you to enact legislation that 

would put teeth in the funding restrictions to ensure that Federal 

funds are not used to support the abuse of the eminent domain 

power. 

Again, thank you for the opportunity to testify on this important 

issue. 

[The testimony of Mr. Alban follows:] 
10 
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Mr. FRANKS. Thank you, sir. 

Mr. Groen, am I pronouncing your name correctly, sir. 

Mr. GROEN. You have done it very well. 

Mr. FRANKS. All right. Make sure that microphone is on, sir. 

TESTIMONY OF JOHN M. GROEN, PRINCIPAL ATTORNEY, 

PACIFIC LEGAL FOUNDATION 

Mr. GROEN. Chairman Franks, honorable Members, thank you 

for the opportunity to be here and to provide testimony to you on 

this important subject. 

My name is John Groen. I am an attorney with Pacific Legal 

Foundation, as you know, a nonprofit public interest law firm, but 

my background really is as a litigator. I’m an attorney that works 

in the trenches, arguing these cases. 

Justice Ginsburg wrote a few years ago in the Arkansas Fish and 

Game case that there is ‘‘nearly an infinite variety of ways’’ that 

government interference can result in a taking. Whether we’re 

dealing with wetlands regulation under the Clean Water Act or 

spotted owl protection under the Endangered Species Act or conversion of abandoned rail lines into public hiking trails under Railsto-Trails, all of those scenarios and so many more all impact thousands of property owners in an infinite variety of ways. And the result is that takings claims are not going away. 

And this is not because those laws or other laws of local and 

State governments are bad policy, but it’s because we cannot overlook what Justice Holmes reminded us, that we cannot achieve the 

public good through a shorter cut than the constitutional way of 

paying for the change. That’s what it is about. That is why the 

Takings Clause is there, to provide that balance of protection between the power of government and the need to protect individual 

rights and property. And so the Takings Clause and your focus on 

it is critical. 

I have been asked to address issues other than Kelo, and in my 

paper I get into a variety of issues dealing with regulatory takings. 

And I’m going to focus on one in particular, and that is what we 

call the relevant parcel issue. 

In takings law, and I’ve given you a brief background in my materials, there’s a number of tests that are applied by lawyers and 

courts, and ultimately we are primarily dealing with what we call 

the Penn Central multifactor takings analysis. Basically, the attorneys on both sides will marshal all of the facts that they can, all 

the relevant circumstances, the factors that are discussed by the 

U.S. Supreme Court, marshal those together and try to show how 

in fairness and justice the burden of that regulation should be 

borne by the public as a whole. 

And I appreciated the quotation from Chairman Goodlatte from 

Armstrong v. United States that it is about this shift in the burden. 

That is what the Takings Clause is meant to protect. Who should 

bear that burden, the individual, or is it something that in fairness 

and justice ought to be borne by the public as a whole? That’s the 

whole Penn Central claim. We also have the Lucas style claim, a 

categorical taking, where there is a denial of all economically viable 

use, and you go in a court, you try to prove that up. 
22 

Well, in both of those scenarios what is happening is you have 

to analyze the economic impact of the governmental interference. 

So the question is, well, what property interests do you measure 

the private loss against? And the answer that is always provided 

is, well, you measure it against the parcel as a whole. And that 

simply begs the question, what is the parcel as a whole? 

The Supreme Court has not answered that question, and the 

lower courts are in disarray. The Supreme Court has made it clear 

that the rhetorical force of that language is less precise than its application. 

So let me tell you about a family in Wisconsin. This is the Murr 

family. And I provide some detail in my materials. But basically, 

in 1960 the parents bought a parcel on the St. Croix River, and 

this was a subdivision, over an acre, they built a cabin. They liked 

it so much, the family had such a good time, they bought another 

parcel right next door and they hung onto it for investment purposes. 

In the 1970’s the regulations changed, and while all the other 

parcels have been developed, they still had their vacant parcel. But 

now, under the new regulations, that parcel is considered substandard. There is still a half-acre available for development, but 

under the new regulations there has to be a full acre available for 

development and that’s not allowed under these regulations. 

So what has happened? They applied for their permits, they were 

denied, brought their suit for a takings claim, and the Wisconsin 

Supreme Court has now ruled that because the Murrs own two 

parcels, side by side, they have common ownership, the parcel as 

a whole must be both parcels, rather than the two separate, discrete parcels, each bought as regular subdivision lots. The Wisconsin court said that there is a rule that a contiguous property 

owner under common ownership is considered as a whole, regardless of the number of parcels contained. 

That strikes right at the concept of fairness and justice. And Pacific Legal Foundation is trying to get that case before the United 

States Supreme Court in a petition in August and to propose the 

rule that I provided in the materials from John Fee on how to address this parcel as a whole concept, which destroys many valid 

regulatory takings claims. 

Thank you. 

[The testimony of Mr. Groen follows:] 
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Mr. FRANKS. Thank you, Mr. Groen. 

I would now recognize our third witness, Mr. Echeverria. 

Is that the correct pronunciation? 

Mr. ECHEVERRIA. That’s correct. 

Mr. FRANKS. And make sure you have got your microphone on, 

sir. 

TESTIMONY OF JOHN D. ECHEVERRIA, PROFESSOR OF LAW, 

VERMONT LAW SCHOOL 

Mr. ECHEVERRIA. Mr. Chairman, Ranking Member Cohen, and 

Members of the Subcommittee, thank you for the opportunity to 

testify today. As the Chairman mentioned, I’m a professor of law 

at Vermont Law School, where I teach property, including the law 

of takings. And I have frequently written on the topic of takings 

and property rights. I have had the privilege of representing parties and amici curiae in takings cases at all levels of the Federal 

and State court systems. I am honored to be here today. 

In the interest of time, I will confine my remarks to the eminent 

domain issue, but I will be happy to address any questions you 

may have about regulatory takings during the Q&A. 

Congress has so far refrained from adopting one-size-fits-all national legislation governing the use of eminent domain for economic 

development. I submit to you that Congress should mark the 10th 

anniversary of the Kelo decision by maintaining that wise course. 

The judicious use of eminent domain is essential for overcoming 

the holdout problem that impedes important redevelopment activity. In older communities, the division of land ownership into 

smaller parcels prevents the assembly of useful, economically viable redevelopment areas through voluntary market transactions. 

Without eminent domain, a few individual owners can derail redevelopment projects by refusing to sell at any price or by seeking an 

judicial windfall. 

In my view, the Supreme Court in the Kelo case wisely refused 

to embrace novel interpretations of the public use requirement of 

the Takings Clause that would have made it harder for State and 

local governments to address the holdout problem. Not only is the 

Kelo decision good legal policy, but it is consistent with over 100 

years of U.S. Supreme Court precedent interpreting the meaning of 

the phrase ‘‘public use,’’ and therefore, contrary to what you’ve 

heard previously this afternoon, it is in my view a model of traditional restraint. 

Today, 10 years after the Kelo decision, the case for Congress not 

proceeding with national eminent domain legislation has only gotten stronger. While the Kelo decision upheld the use of eminent domain for economic development, the court recognized ‘‘that the necessity and wisdom of using eminent domain to promote economic 

development are certainly matters of legitimate public debate.’’ 

The court, in effect, invited the States to consider imposing their 

own State-level restrictions on the use of eminent domain, and the 

States have responded to that invitation with great enthusiasm. 

Over 40 States have adopted different types of reform legislation. 

A number of States have also adopted through their judiciaries new 

restrictive interpretations of the public use requirements in their 

own takings clauses. 
35 

Naturally, given the diversity of our States, the States have 

adopted very different approaches to the issue of reforming the use 

of eminent domain in the aftermath of Kelo. I noted in the testimony of the first witness that he observes that every single State 

that has addressed the Kelo question has addressed it in a different 

fashion. In other words, we have over 40 distinctive approaches to 

Kelo reform in the State legislatures. 

In my view, it would be both unwise and destructive for Congress 

to pass legislation contradicting all this good work in the States. 

Not only have the States acted, but they have acted in a wide variety of different ways that reflect the specific values, interests, and 

redevelopment challenges in the individual States. New Mexico, to 

pick one example, has essentially abolished the use of eminent domain to promote economic development. New York, by contrast, has 

declined to do that. And in between those two positions many other 

States have adopted a wide variety of other reform approaches. 

National legislation would trump all this State lawmaking activity, wasting all this State effort and overriding the considered 

judgements of elected State officials about what uses of eminent domain are appropriate in their States. Lawmakers in Washington, 

D.C., would improperly substitute their wisdom for that of the leaders of the States, the laboratories of democracy, by passing national 

legislation addressing the use of eminent domain at the local level. 

For all these reasons, I respectfully submit that Congress should 

continue to stay its hand on the eminent domain issue. 

Thank you again for the opportunity to testify. And as I said at 

the outset, I would be happy to respond to any questions, including 

any questions about the regulatory takings issue. Thank you. 

[The testimony of Mr. Echeverria follows:] 
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Mr. FRANKS. Thank you, sir. 

And I would now recognize our fourth and final witness, Mr. 

Seasholes. 

And, sir, if you’d make sure your microphone is on too. 

Mr. SEASHOLES. I think it is. 

Mr. FRANKS. Yes, sir. 

TESTIMONY OF BRIAN SEASHOLES, DIRECTOR, ENDANGERED 

SPECIES PROJECT, THE REASON FOUNDATION 

Mr. SEASHOLES. All right. Good to go. 

Chairman and Committee Members, thank you for the opportunity to testify. My testimony today focuses on endangered species 

conservation, specifically landowners and their concerns, which include property rights and values, because they are the linchpin for 

the conservation of this country’s biodiversity, particularly endangered species. And the main reason for this is that private landowners own most of the habitat for endangered species. 

Over the past several decades, however, it has unfortunately become apparent that the Endangered Species Act is doing enormous 

harm to endangered species, because its penalty-based approach 

works against landowners by infringing on their property rights 

and negatively impacting their property values and the ability to 

earn income from their land. 

Due to this penalty-based approach, the Endangered Species Act 

discourages landowners from harboring endangered species, as well 

as from allowing scientists and researchers onto their land, and encourages landowners to rid their property of endangered species, 

and the habitat necessary to support them, as well as keep quiet 

and hope the presence of endangered species on their land is not 

noticed by regulatory authorities, as well as groups that support 

the Endangered Species Act. 

Regrettably, pressures on landowners and the anticonservation 

incentives they create are in the process of getting much worse due 

to a number of factors. 

First, the number of listed species is increasing dramatically as 

a result of a 2011 lawsuit settlement. 

Second, most of the species covered under the lawsuit settlement 

are based in freshwater aquatic habitats, which means entire watersheds, not just discrete parcels of land, may well be subject to 

the Endangered Species Act’s regulations, as one of the groups involved in the lawsuit settlement has indicated. 

Third, the recent expansion of the Clean Water Act under the 

Waters of the United States rule is likely to create a regulatory 

nexus with the Endangered Species Act. 

Fourth, the Administration’s recent efforts to expand the Endangered Species Act, particularly under the critical habitat rule and 

definition. 

And lastly, very aggressive groups that excel at litigation but 

don’t do any real conservation work have been driving the agenda. 

In order to address these problems, substantive reform is necessary. Various reforms over the past two decades have proven ineffective because they leave intact the penalties that cause harm 

to species and landowners. Substantive reform starts with eliminating these penalties. 
53 

Fortunately, an answer for a new successful approach to conserving endangered species is hidden in plain sight and has been 

around for over 100 years. It is called cooperative extension. It exists in every State and provides technical assistance and information to help farmers, ranchers, forest owners, and others improve 

their land use and natural resource practices. 

There is a reason why landowners voluntarily pick up the phone 

and call their local cooperative extension office. But most landowners would not dream of calling the U.S. Fish and Wildlife Service if they thought they had an endangered species on their property. The reason is that cooperative extension comes with technical 

help, some financial assistance, and it is voluntary. By comparison, 

endangered species result in fear, intimidation, compulsion and reduced property values. 

The incentive-based approach of cooperative extension stands in 

stark contract to the penalty-based approach of the Endangered 

Species Act. 

This beautiful country of ours is blessed with an incredible diversity of species, but the conservation of these species depends on the 

good will and willing cooperation of America’s landowners. America 

has a long and proud tradition of private conservation, which is 

very much a part of the spirit of volunteerism, civic-mindedness, 

and patriotism that are hallmarks of American culture. 

As the success of cooperative extension shows, America’s private 

landowners are ready, willing, and able to conserve this country’s 

land, water, and wildlife so long as they are not punished, their 

property rights and values are not threatened, and they are shown 

the open hand of friendship, not the closed fist of regulation. 

While there are enormous problems with how this country goes 

about conserving endangered species, there that are larger opportunities to fix these problems by charting a new course for endangered species conservation that respects landowners and their 

property rights. 

This concludes my remarks, and I would be happy to answer any 

questions. 

[The testimony of Mr. Seasholes follows:] 
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Mr. FRANKS. Well, thank you, sir, and thank you all for your testimony. We’ll now proceed under the 5-minute rule with questions. 

I’ll begin by recognizing myself for 5 minutes. 
70 

Mr. Alban, I’ll start with you, sir. Ten years have passed since 

the Kelo decision was handed down, and during that time the 

House has three times passed legislation on a broad bipartisan 

basis to address that decision. Most States have also enacted legislation, at least in part, that addresses the problem. Is there still 

a need for Congress to pass legislation to address Kelo further or 

would such an effort be a waste of time or redundant, in your 

mind? 

Mr. ALBAN. Thank you very much for the question. 

Yes, there is still a strong need for Congress to take action because, as I detail in my written testimony, there are countless examples of Federal funding still being used for projects that engage 

in eminent domain abuse, taking private property from one person 

and transferring it to another private person. 

The Federal funding that is available is not stopped by many of 

the State reforms that have been passed after Kelo. There has been 

a very wide variety of reforms. And in some cases, such as Alabama, the reform that they passed after Kelo has since been repealed. 

So there have been some States that have taken very good action 

and effectively ended eminent domain in their States, but there 

have been other States, such as New York, that have taken no action at all, and other States that have taken actions, legislative reforms that do very little to protect the property rights of property 

owners. And I think it’s important that Federal taxpayers not fund 

these continued abuses of eminent domain. 

Mr. FRANKS. Well, thank you, sir. 

And, Mr. Groen, I’d like to ask you two interrelated questions. 

First, if property owners were more fairly compensated for regulatory takings of their property, would this somehow threaten the 

ability of government to function? And second, given your experience in representing property owners, do you believe that the clients that you represent were out to impede the government’s ability to operate or were they essentially just seeking to be compensated for the burdens that government has put on their ability 

to use and enjoy their land? 

Mr. GROEN. Thank you for the question. 

The answer from my perspective is very simple: The Takings 

Clause and the enforcement of it by landowners does not in any 

way impede the ability of government to function and to make policy choices with regulation. 

What it does require is that the cost of those regulations not be 

borne exclusively by the people who are subject to them. When 

there are situations where the Armstrong principal that we discussed, in fairness and justice those burdens should be borne by 

the public as a whole. 

And so the Takings Clause and the constitutional command of 

just compensation does not preclude government from acting, but 

what it does do is require the payment of compensation when that 

action is so severe on impacting private owners that the result is 

a taking. That does not limit government, but it conditions the exercise of the governmental power by the constitutional balance of 

the Just Compensation Clause. 
71 

Mr. FRANKS. Mr. Seasholes, could you give us an example, sir, 

of an endangered or threatened species that has been harmed by 

how the Endangered Species Act treats property owners? And explain how a more broad, more balanced approach that protects both 

property rights and the environment would better serve that species than this current approach. 

Mr. SEASHOLES. Sure. I’d be happy to. 

There’s been, over the past several decades as this issue has become more prominent, there has emerged in the scholarly literature a number of species, one of which is the red-cockaded 

woodpecker, which inhabits the pine forests of the southern United 

States. There have been several empirical research projects that 

have been published in the literature showing several things. One, 

landowners destroying property preemptively to try to preclude 

woodpeckers from moving in. Also, not replanting property or 

planting with species that may be unfriendly to the woodpeckers. 

And there are a number of others detailed in my testimony. 

In terms of evidence for how a more incentive-based approach 

would work better, I’d just like to call your attention to, and it’s 

my written testimony, over the past decade there have been a number of landowner surveys into the factors that encourage and discourage landowners from conserving endangered or potentially endanger species. And these landowner surveys have shown a number of things. One thing is landowners want to be compensated, 

they don’t like to be regulated, they don’t like permanent conservation easements. 

And so what these landowner surveys kind of give shape to is, 

I think, a really new approach that would be more effective that 

points towards, as I said, the cooperative conservation or cooperative extension approach that has been very successful. And landowners across the country engage it, I’m sure many of your constituents perhaps even, they like it, they have very good relationships with State-based, Federal even, from U.S. Department of Agriculture extension agents. It is very different, the relationships 

they have with the Fish and Wildlife Service, which tend to be very 

negative. 

Mr. FRANKS. Well, thank you, sir. 

And I would now recognize the Ranking Member for his questions for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chair. 

Mr. Alban, your group is Institute for Justice, that’s who you 

work with. Is that correct? 

Mr. ALBAN. Yes, sir. 

Mr. COHEN. Does the Institute for Justice generally favor local 

governments, State governments, or Federal overreach and control? 

Mr. ALBAN. The Institute for Justice generally favors people’s 

constitutional rights being respected by any level of government. 

Mr. COHEN. I know that. That’s not the question I asked. And 

you’re a very smart man, you can respond to a question. 

Does the Institute for Justice have a preference for local and 

State decisionmaking, grassroots, or Federal, Washington, one-sizefits-all programs? 

Mr. ALBAN. I don’t think the Institute for Justice has a general 

position on that. I think in some cases, obviously, local and State 
72 

governments are more informed about what’s going on, and in 

other cases the Federal Government is more prepared to act. 

Mr. COHEN. And why do you think in this case that the Federal 

Government should act and not local governments when it deals 

with local property rights? 

Mr. ALBAN. Well, because the proposal that I’m suggesting is not, 

in fact, the Federal Government acting. It’s the Federal Government saying that Federal tax dollars cannot be used for eminent 

domain abuse. So it is not a one-size-fits-all solution. New York, 

which has not passed any eminent domain reforms, could still continue to engage in eminent domain abuse, it just couldn’t use Federal taxpayers dollars to do it. 

Mr. COHEN. Well, I would disagree with your analysis of that, because I think really what you’re saying is it would be one Federal 

policy with Federal tax dollars and it’s the Federal Government determining through the tax dollar measurement whether or not they 

can do it or not. But I would disagree. 

Mr. Groen, you work with Pacific Legal Foundation. What are 

the principal sources of the Pacific Legal Foundation? 

Mr. GROEN. The principle sources of funding? 

Mr. COHEN. Yes, sir. 

Mr. GROEN. Primarily from individuals. 

Mr. COHEN. And who are your largest three individuals, financially, not by weight? 

Mr. GROEN. I have no idea. 

Mr. COHEN. You have no idea? 

Mr. GROEN. I do not. 

Mr. COHEN. Koch brothers? Koch brothers? 

Mr. GROEN. I have no idea. 

Mr. COHEN. You have no idea. 

And how about the same thought, do you think local government 

is the better place to make these decisions or Federal? 

Mr. GROEN. Well, when you say these decisions, I’m not sure 

what you’re talking about. Certainly there is regulation that takes 

place at the local level, State level, and at the Federal level, all of 

which impact property owners. 

The key is that we have a Constitution that governs all levels of 

government, and it is important and necessary in our system that 

that constitutional provision be properly enforced. And that’s the 

focus that I’m coming from. 

Mr. COHEN. Mr. Seasholes, the Reason Foundation is easier to 

determine. We know David Koch is a member of your board, is that 

not right? 

Mr. SEASHOLES. I believe so. I’ve been there about a year and a 

half, so I’m kind of still learning the ropes. 

Mr. COHEN. And the Koch family foundations provide much of 

your funding, do they not? 

Mr. SEASHOLES. I do not know. I’m sorry. It’s a bit above my pay 

grade. 

Mr. COHEN. Well, it’s interesting how agnostic folks are about 

who funds their salary. 

Mr. SEASHOLES. I’m not agnostic, Mr. Cohen. I don’t know. I’ve 

been there for about a year and a half. 
73 

Mr. COHEN. Well, that’s kind of the same thing, is not knowing, 

not caring. I don’t mean agnostic as distinguished from religious. 

Mr. SEASHOLES. I may be ignorant, but I don’t necessarily not 

care. 

Mr. COHEN. Okay. Well, I would care. 

Mr. Echeverria, tell us what your responses would be to the testimony of these gentlemen concerning the Kelo decision. 

Mr. ECHEVERRIA. Well, there’s so much to say. Let me respond 

to some of the comments on regulatory takings. I think it’s just 

simply not correct to say that an unconstitutional, unhistorical, expansive reading of the Takings Clause would not interfere with 

government’s ability to operate. Justice Holmes famously remarked 

in the Mahon case that government could hardly go on if government had to pay every time it imposed a piece of general legislation. 

Charles Fried, a very distinguished professor at Harvard Law 

School, wrote a book recounting his experiences in the Reagan administration where this novel, expansive theory of regulatory 

takings was first developed, and he was very explicit in saying, 

from his perspective, as the number three person in the Justice Department, that the regulatory takings agenda was designed to impede regulatory action. 

So if the law were changed and established precedent were altered and government were required to pay for every kind of regulatory restriction, the fact of the matter is that government would 

grind to a halt. And I suggest to you that is the objective of groups 

like the Reason Foundation, the Pacific Legal Foundation, and the 

Institute for Justice. 

Mr. COHEN. Thank you, sir. I appreciate it. 

Mr. FRANKS. I thank the gentleman. 

I would now recognize the Chairman, Mr. Goodlatte, for his questions. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Echeverria, I’m not going to ask you what liberal organizations might have contributed to Vermont Law School. I’m going to 

assume that you do your work based upon what you think is right 

and that your intellectual—— 

Mr. ECHEVERRIA. Many hard-working students contribute to our 

support. 

Mr. GOODLATTE. Right. Absolutely. And I’m sure you have donors 

as well as and that you, like other organizations, pride yourself on 

your intellectual integrity. And I’m sure—— 

Mr. ECHEVERRIA. I’m not being paid to be here by any institution. 

Mr. GOODLATTE. I’m sure that these other gentlemen pride themselves on their intellectual integrity as well. 

But I do want to ask you about your defense of the Kelo decision. 

It appears that the economic development that brought about the 

takings in Kelo was a failure. And I wonder if you’ve seen other 

failed economic development takings where owners were forced out 

of their homes only to have the redevelopment plans fail. 

In previous hearings we’ve had Susette Kelo here testifying. It’s 

a very heartwrenching and compelling thing to have someone have 

their home taken away from them, not for the pipelines and so on 
74 

that are referred to in your statement, where obviously in order to 

move electricity or natural gas or whatever the case might be, 

water, you need to have some things that transit property lines. 

But her property was entirely taken, not for a governmental purpose, but for a private economic development purpose. And the real 

basis for it was that there would be new higher tax revenues generated for that. 

So I’m wondering if you have other examples like that where—— 

Mr. ECHEVERRIA. I can’t offhand. I mean, I wouldn’t doubt that 

there may be some. 

I think it is important to emphasize, you mentioned infrastructure facilities, that pipelines and highways can be as destructive to 

homeowner interests as any other form of eminent domain. 

Mr. GOODLATTE. Sure. Absolutely. But they connect people and 

they have a long history of doing that. But shopping malls don’t 

have as long a history of using eminent domain powers to take private property from one individual and give that private property to 

another individual or corporation for the purpose of building something bigger and grander and more glorious than that person’s 

home. 

Mr. ECHEVERRIA. I don’t think that makes any difference to the 

homeowner. The representative of the National Association of Colored People who spoke at a recent Cato anniversary celebration argued that if Congress were to address the question of eminent domain, Congress—— 

Mr. GOODLATTE. Let me interrupt you because my time is limited.It may not make a difference to the homeowner, but it does 

make a difference in terms of establishing where the line is on 

when government can take property and when they cannot. There 

are certain types of things that have historically been deemed to 

be appropriate for government to take for the broader public good 

and there are certain places where they have not. And that line, 

I think, was completely breached by the Kelo decision. 

Do you disagree with the dissenting opinion that the public purposes aspect of the Fifth Amendment was nullified by the Kelo decision? 

Mr. ECHEVERRIA. I was simply trying to share with you the advice—— 

Mr. GOODLATTE. Answer my question. 

Mr. ECHEVERRIA. Can I answer the question, the first question? 

Mr. GOODLATTE. You already did. 

Mr. ECHEVERRIA. No, I never got my chance. 

Mr. GOODLATTE. No, you said you didn’t know of any other—— 

Mr. ECHEVERRIA. You asked another question, you raised infrastructure, and I was trying to respond to that part of your question. 

Mr. GOODLATTE. Well, I didn’t ask you a question about that. I 

just told you that I knew the difference between infrastructure and 

others and asked you if you could draw the line. 

Mr. ECHEVERRIA. And I just was trying to tell you that many 

people do not see a distinction there and do not think that Congress should draw such a distinction. 

On the question of the—— 

Mr. GOODLATTE. Let me ask Mr. Alban if he knows of other examples, other than the Kelo decision, where private property was 
75 

taken and transferred for other private purposes and then nothing 

happened, the whole thing was a failure. 

Mr. ALBAN. Sure. I’ll give three fairly local examples. 

The Berman v. Parker decision took all of Southwest D.C. via 

eminent domain, and many areas in Southwest D.C. are still being 

revitalized now, 60 years later. There are large swaths of Southwest D.C. that were never replaced with the proposed developments. 

In the testimony by Mr. Echeverria that he submitted, there is 

an example, the Skyland shopping center in Southeast D.C., in 

Anacostia, where the land was taken, and they’re still searching for 

an anchor tenant that would be able to allow the property to go forward. 

There’s also a development in Baltimore. 

Mr. GOODLATTE. Those people have been displaced from their 

homes in the meantime. 

Mr. ALBAN. Homes and businesses, yes. 

Mr. GOODLATTE. They’ve lost their homes. 

Mr. ALBAN. Their businesses for the most part, yes. 

Mr. GOODLATTE. Thank you. 

Mr. Groen, the Supreme Court has made it difficult, if not impossible to bring Fifth Amendment taking claims against State and 

local governments in Federal court. Can you think of any other situations in which a fundamental right written in our Constitution 

is left up to State courts to decide whether or not to enforce? 

Mr. GROEN. I cannot. From my experience, it is a very unique situation where the Williamson County decision forces people with 

Federal takings claims to bring their cases in State courts. 

We’re working on that right now, there’s a case heading to the 

Fourth Circuit called Perfect Puppy v. City of Rochester, to try and 

make inroads on that doctrine. I discuss that briefly in my materials. 

The only other situation that I can think of also involves the 

Takings Clause, and that is the Court of Federal Claims requires 

that if you’re bringing a takings case against the United States 

Government for over $10,000, you cannot bring it in Federal district court, you bring it in the Court of Federal Claims, which does 

not have article III judges with life tenure and security of no diminution in pay. And so that is the only other situation, and again, 

it is a Takings Clause situation. 

The Federal constitutional protection of citizens’ rights and property, the Federal courthouse doors should be open for them to litigate in their communities, in their Federal district court. 

Mr. GOODLATTE. Thank you. 

My time has expired. Thank you, Mr. Chairman. 

Mr. FRANKS. I thank the gentleman. 

I would now recognize Mr. King for his questions. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony and interaction with 

the questions that have been asked. 

I would state first that I have this dj vu feeling. It’s been 10 

years since the Kelo decision. I recall some of the debate on the 

floor of the House of Representatives when we brought a resolution 

of disapproval on the Kelo decision. And I remember I was queued 
76 

up to speak right behind Mr. Barney Frank of Massachusetts, and 

I sat down in the front row with my notepad anticipating that I 

would take notes on my anticipated rebuttal. 

Barney Frank and I had exactly the same position on the Kelo 

decision, which was an usual thing. And I made the statement 

then, not having read any of the dissent, that I believe that it 

struck three words out of the Fifth Amendment, ‘‘for public use,’’ 

which was the point of the question Mr. Goodlatte asked a moment 

ago. And I go back and read that Fifth Amendment today, and 

today it reads, ‘‘nor shall private property be taken without just 

compensation.’’ 

That’s an appalling thing to me, and this Congress rose up and 

rejected that decision. And so I wanted to pose this question, I 

think first to Mr. Echeverria. 

Our Founding Fathers gave us the means to amend the Constitution, and I don’t think they actually anticipated Marbury, but it’s 

here and it’s a couple of centuries behind us. And so with that in 

mind, an appropriate way to address this, at least from a technical 

but not a practical perspective, would be to draft an amendment 

if we wanted to restore the property rights as understood prior to 

Kelo. And I’d ask if you could give us some counsel on how one 

might write such an amendment to restore the property rights as 

understood before the Kelo decision. 

Mr. ECHEVERRIA. Well, I would be loathe to do that because I 

think Kelo reaffirmed 100 years of precedent. Can I explain why 

I think—— 

Mr. KING. Well, I’d just as soon not, given my clock is burning 

down, but I want to rather instead, if I could just start from a left, 

if anyone has a recommendation on how we might draft an amendment to put the property rights back together that existed and 

were drafted into the Fifth Amendment prior to the Kelo striking 

the three words out, ‘‘for public use.’’ How would we write that? 

Would we write the same thing or was there another way to say 

it more firmly such as, ‘‘for public use and we really mean it?’’ 

What would you recommend, Mr. Alban. 

Mr. ALBAN. Well, I think it’s actually the role of the courts to 

properly interpret the Constitution and those words, ‘‘public use.’’ 

So I don’t think it needs amendment. I think the courts need to 

give those words the actual meaning they have. 

But if you’re looking for language that excludes this expansive 

definition of public purpose, I think you can look to the Bond 

amendment or to the Private Property Protection Act, which both 

describe the sorts of takings that are permitted and the sorts of 

takings that are not permitted. 

Mr. KING. Thank you. 

Mr. Groen. 

Mr. GROEN. I think the easier solution is that the public use requirement is limited to ownership controlled by the Federal Government. What was particularly disturbing about the Kelo decision 

is the transfer of title to a private entity, from one private person 

to another private person, and that is an appropriate place for 

drawing the line. Otherwise, public use can be read fairly extensively, but not to the point of transferring property from private 

person to another private person. 
77 

Mr. KING. And in your narrative that you discussed, Mr. Groen, 

of the property that was a half-acre that it was adjacent to, I would 

just state it this way, and I’d ask if you’d agree with me. Up until 

Kelo, when a person bought a piece of property, we had an expectation that we could utilize that according to the law in a lawful 

manner for the duration of our lifetime. And so the Kelo decision 

that’s allowed now for the—that’s brought about the State legislation, has that altered the expectation nationally and made it an undecided circumstance where if you buy property today, you can’t 

know what kind of decision might come back upon that because of 

public officials that would use the condemnation? 

Mr. GROEN. Well, I think that there is certainly some uncertainty 

for property owners. With respect to the Wisconsin example that I 

mentioned in the paper, that is not so much a public use issue as 

it is a problem with the combination of separate and discrete parcels where there is a longstanding history, as you mention, where 

individuals do have an expectation that they will be able to use 

each of those separate and discrete parcels and not have them 

forced to be merged together by government regulation and be declared as a parcel as a whole for the purpose of eliminating their 

right to compensation. 

Mr. KING. Thank you, Mr. Groen. 

If I might just conclude with the Chairman here, is that it did 

not trouble me and it does not trouble me if I see a residential 

home sitting in the middle of an asphalt parking lot at a shopping 

mall out of respect to the Fifth Amendment and the property 

rights. That says something about a pillar of American exceptionalism that I think was seriously damaged by Kelo. Thank you, and I yield back. 

Mr. FRANKS. I thank the gentleman. 

I now recognize Mr. DeSantis from Florida for his questions. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Mr. Alban, the Kelo decision, do you view that as being broader 

than the Hawaii Housing Authority v. Midkiff decision, broader in 

a sense of not protecting private property rights? 

Mr. ALBAN. Absolutely, because it clarified that now property 

could be taken for the explicit purpose of economic redevelopment 

for the benefit of a private developer who the only public benefit 

that was being promised was additional tax dollars in the city’s coffers. 

Mr. DESANTIS. So that’s a significant departure from the historical understanding? 

Mr. ALBAN. Absolutely it is, yes. 

Mr. DESANTIS. The economic development that was promised in 

Kelo actually turned out to be a failure. Have you seen other instances of where you had economic development takings and yet 

people forced out of their homes while the plans end up failing? 

Mr. ALBAN. Yes, there have been a number of examples. As I was 

mentioning earlier, in Southwest D.C., almost the entire area was 

taken through eminent domain, and it is still being transformed 

and there are still promises about what’s going to be done there. 

There’s the Skyland development in Anacostia. And in a case 

that I’m handling currently in Atlantic City, New Jersey, there is 

redevelopment takings around the Revel Casino, which has twice 
78 

filed for bankruptcy and now closed its doors, but the State redevelopment agency there is still trying to take people’s homes for no 

particular purpose whatsoever. They just want to acquire land 

around what is now a failed casino. 

Mr. DESANTIS. And some will say, well, gee, if you interpreted 

the Fifth Amendment the way you’re suggesting, it’s going to be 

more difficult to have economic development. And I guess my question is, if a constitutional, explicit constitutional protection does 

create some inconvenience in other parts of American life, has that 

ever been deemed sufficient to simply write it out of the Constitution and ignore it? 

Mr. ALBAN. No, certainly not, and there are great inconveniences 

on homeowners and small business owners when their properties 

are taken through eminent domain, particularly when it’s taken to 

give to another private party for that private party’s personal profit. 

Mr. DESANTIS. Mr. Groen, let me ask you. With the Supreme 

Court’s posture in this, it’s very difficult to go into Federal court 

and bring a Fifth Amendment claim if your property’s been seized 

in violations of the Takings Clause. Are there any other situations 

in which a right that’s fundamental that’s explicitly protected in 

the Constitution is simply just left to kind of the State courts to 

decide whether they want to enforce or not? 

Mr. GROEN. None that I’m aware of. As I mentioned earlier, the 

only other situation is where litigants suing for over $10,000 for a 

taking are forced to the Court of Federal Claims, and that raises 

an article III question. 

This situation for parties being forced into State court is a result 

of the 1985 Williamson County decision by the Supreme Court, and 

that is simply a requirement that has to change. And we’re working on that through litigation, but it’s been since 1985, and we’re 

still working on it. Help from Congress is always welcomed. 

Mr. DESANTIS. Well, it’s really strange. I mean, I think that if 

you go back when the Constitution was ratified, I mean, the right 

of private property, and that was a major, major right, and in fact, 

infringing on that right, that was what they viewed was probably 

the most direct threat to liberty. And then here we are now, it’s 

almost like people have got to beg to have these rights enforced in 

Federal court. 

Now, Professor Echeverria contends that if the requirement to 

provide compensations under the Takings Clause is not limited to 

extreme circumstances, it would be very difficult for kind of the 

modern state to function. In your opinion, could the government 

continue to function if courts enforced the Taking Clause in a more 

robust way? 

Mr. GROEN. I’m really glad you asked me that, because Professor 

Echeverria cited to the Mahon case Justice Holmes, where he did 

say that if the government had to pay for every change in the law 

it could hardly go on. But he continued in that case and said, ah, 

but if regulation goes too far, then it is a taking and we have to 

obey the constitutional command of compensation. It is a balance. 

The Takings Clause—not every interference with property rights 

is going to be a taking. It simply isn’t. And government has vast 

room to regulate and diminish property values without becoming a 
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taking. But when it crosses that line, when it goes too far, it is the 

duty of the courts to obey the command of just compensation, and 

that is where the difficulty has been in the regulatory takings 

arena. 

We have made a lot of progress, but as interference continues 

and grows through ever-increasing regulations, we continue to have 

to litigate these cases and have a vigorous defense of the Takings 

Clause. 

Mr. DESANTIS. Thank you. My time has expired. I yield back. 

Mr. FRANKS. And I thank the gentleman. 

And I apologize to the gentleman from Ohio, Mr. Jordan, for 

skipping over him. 

Mr. JORDAN. Not a problem. 

Mr. FRANKS. I now recognize him for 5 minutes. 

Mr. JORDAN. Yeah. For Mr. DeSantis, it’s fine. 

Thank you, Mr. Chairman, and I apologize for missing part of it. 

I had to get back to my office for a meeting. 

But thank you all for being here. 

The title is ‘‘The State of Property Rights in America.’’ I would 

say ‘‘The State of Rights in America.’’ We’ve got the Kelo decision 

and the takings, we’ve got what the Chairman has brought up 

about regulatory takings, but, I mean, I point to things even more 

recent. When the bondholders at Chrysler were told to take the 

deal back during the auto bailout, that is, in my judgment, a fundamental violation of people’s rights. People’s religious liberty 

rights under ObamaCare, people’s First Amendment free speech 

rights under the IRS targeting groups for exercising that very 

right, their free speech rights to speak out against the government. 

So I was curious, Mr. Alban, Mr. Groen, if you could comment 

on not just this takings issue, but a broad—people right here in the 

District of Columbia, I think in many ways, denied their Second 

Amendment rights. 

We’re obviously concerned about the takings issue, but I think, 

in a broader sense, just people’s fundamental liberties under the 

Constitution as Americans and the impact we’re seeing from government policies on the broader question. 

Mr. Alban, your thoughts? 

Mr. ALBAN. Yes, I think that’s right. I don’t know how much of 

it is directly connected to the Kelo decision, but there has certainly 

been a severe erosion of rights. We litigate cases involving people’s 

economical liberty, the right to earn a living that is being severely 

repressed all over the country. 

And something that does fall under the scope of property rights 

that’s been a severe problem for people has been the growth of civil 

forfeiture, where folks have had their property taken without being 

charged with a crime. So that’s another example that we’re actively 

litigating where—— 

Mr. JORDAN. And, frankly, told not to talk about it, right? 

Mr. ALBAN. In some cases, yes. 

Mr. JORDAN. Some of the John Doe investigations we have had 

some people write about in Wisconsin that took place over the last 

few years. 

Mr. Groen. 
80 

Mr. GROEN. Your question reminds me of what Justice Holmes 

talked about in Pennsylvania v. Mahon in 1922. He recognized that 

when you’re dealing with the police power, the power of government to regulate, he said the natural tendency is for there to be 

more and more and more regulation until at last—and he was in 

the context of property—until at last private property disappears. 

That’s the natural tendency. 

The barrier to stop that is the Constitution. And so I think you’re 

right, that natural tendency we see playing out in all kinds of 

rights. 

The other aspect that I would emphasize is we talk about property rights, but it was pointed out by Justice Stewart that property 

does not have rights. People have rights. 

Mr. JORDAN. Well said. 

Mr. GROEN. And the right to enjoy property. 

Mr. JORDAN. Uh-huh. 

Mr. GROEN. As well as all your other civil rights. They’re interrelated. And if you eliminate rights in property, then you threaten 

all your other liberties as well. That is the big picture that I think 

is at stake. We see it played out in property rights, but if that natural tendency is allowed to grow more and more and you don’t have 

the police power balanced by the constitutional protection, then our 

rights disappear. 

Mr. JORDAN. It’s one of the reason you’ve seen the Members up 

here in this Committee, and particularly the Chairman, focus so 

much on this—and I’m changing the subject a little bit, but to your 

point—so much on the fact that you had an agency with the power 

of the Internal Revenue Service systemically and for a sustained 

period of time target groups for exercising their most fundamental 

right under the First Amendment, their right to speak out against 

the government. And we should be able to do that and not be harassed for doing it. But that’s exactly what the Internal Revenue 

Service did. 

So when you couple that with the takings issue, the regulatory 

takings that are taking place, people’s religious liberty, I mean, it’s 

why this Committee is so concerned about what we see happening 

in our great country. 

And I appreciate you all being here. 

And with that, I yield back, Mr. Chairman. 

Mr. FRANKS. And I thank the gentleman. 

And certainly thanks to all the witnesses for attending. It was 

worth the hearing to me today to be reminded that property does 

not have rights, people have rights, and the diminishment of the 

people’s rights in one area is a diminishment of their rights in 

other areas as well. And so we are grateful that you were here. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And once again I thank all of the Members, the witnesses, and 

the people who attended today. And this hearing is adjourned. 

[Whereupon, at 3:45 p.m., the Subcommittee was adjourned.] 
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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Response to Questions for the Record from John D. Echeverria, 

Professor of Law, Vermont Law School 
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