Supreme Court dishes property owners a Fifth Amendment victory


By Bonner Cohen, Ph. D. |June 25th, 2019|Property|

In a decision that sent chills down the spines of environmental groups and raised the spirits of property rights advocates, the U.S. Supreme Court June 21 removed a significant legal barrier that, for decades, had effectively barred aggrieved landowners from challenging local ordinances in federal court.

The court’s 5-4 ruling restores property rights to the full constitutional status the Framers envisioned when they included the Fifth Amendment’s Taking Clause in the Bill of Rights, opening federal courts to property owners seeking “just compensation” for the taking of their property by government.

Property owners’ access to federal courts had been effectively blocked since 1985, when the Supreme Court, in what is known as its Williamson precedent, ruled that landowners must first bring takings claims against local governments to state courts before proceeding to federal court. Williamson is short for Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

Catch 22

For property owners, Williamson created a Catch-22 situation, because, under a subsequent Supreme Supreme Court ditches Clean Water Act conviction posthumouslyCourt ruling, a federal court generally must defer to a state court’s resolution of a claim for just compensation. Property owners caught in this Catch-22 were cast into a neverland of endless, bank-account-draining litigation in state courts, with little hope of ever receiving their day in court at the federal level.

“The takings plaintiff thus finds himself in a Catch-22. He cannot go to the federal court without going to the state court first; but if he goes to the state court and loses, his claim will be barred in federal court,” Chief Justice John Roberts wrote. “The federal claim dies aborning.”

In reversing the 34-year-old Williamson precedent, the Supreme Court will allow takings plaintiffs to bring their cases to federal court, where, if successful, they will receive the just compensation guaranteed them under the Constitution.

“We now conclude that the state-litigation requirement imposes an unjustifiable burden of takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled,” Roberts said, speaking for the majority.

The case, Knick v. Township of Scott, that led to the reversal of Williamson involves Rose Mary Knick, owner of a 90-acre property in western Pennsylvania on which a cemetery is situated. Knick challenged an ordinance by Scott Township requiring that cemeteries “be kept open and accessible to the general public during daylight hours.” The ordinance, she and her attorney argued, constituted a taking of her property. Knick filed a takings claim in federal court, but the court, citing Williamson, said she could not bring the suit without going through state proceeding first. She was stuck in the Catch-22.

“This decision is a very long time coming for Rose and other property owners who have had federal court doors slammed shut in their face whenever they seek compensation for a government taking of their private property,” Pacific Legal Foundation (PLF) attorney Dave Breemer, who represented Knick in the case, said in a statement. “The Court’s decision sends a message that constitutionally-guaranteed property rights deserve federal protection just like other rights.”

Fracking Bans and Mineral Rights

Alston & Bird attorney Paul Beard believes the ruling will have a far-reaching effect on energy and environmental policy, especially at the local level.

“In the energy-regulation space, we can expect more – and more successful – challenges to statutes and ordinances that, to take examples from recent trends, destroy or significantly damage oil, gas, and mineral rights. Think fracking bans,” he told E&E News (June 21) in an email.

Full article here.

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Tom Halla
June 26, 2019 2:18 pm

Let’s see if the lower Federal Courts actually follow this precedent. Some decisions, like Heller or McDonald, have mostly been ignored by the lower courts and some appeals courts.
Green issues are at least as controversial as guns, and I expect resistance from some judges.

Gary Pearse
June 26, 2019 2:27 pm

SCOTUS 5:4 on taking private property! Not something to rejoice about. Had H.C. beat Trump, it would have been game over for this essential right and other rights would fall like autumn leaves until the tyranny was complete.

Please get out and vote and overturn loss of the House to the gaggle of witless naive socialists that threaten to bring America down further. You know the traitorous billionaires will be out their “getting out” their poisonous voted.

Steven Lohr
Reply to  Gary Pearse
June 26, 2019 5:17 pm

Gary Pearse: Yes, you are so correct. There is a long road back from the madness we are experiencing.

Reply to  Gary Pearse
June 27, 2019 9:44 am

Think of Tom Steyer buying up state legislators, and Soros buying up local District Attorneys.
But the premier right, free speech, is under billionaire oligarch attack at least as fierce.
These are exciting times in the worst sense.

Bryan A
Reply to  hunter
June 27, 2019 3:02 pm

We definitely do live in Interesting Times

Sam Pyeatte
Reply to  Gary Pearse
June 27, 2019 2:56 pm

This is great news, kicking the freedom-hating socialist left where it hurts. We must roll back All the anti-freedom measures in the “Home of the Brave, and Land of the Free”.

June 26, 2019 2:28 pm

Frack on USA!

Mike Bryant
June 26, 2019 2:31 pm

We need many more decisions like this to return power to the people.

June 26, 2019 2:32 pm

Finally, one for the good guys!!

June 26, 2019 2:43 pm

On the one hand, property rights are protected. On the other hand, your freedom ends where my nose begins. Pollution regulations seem to be constitutional. link

You may remove the minerals from your land but local governments may enact harsh pollution regulations as a form of harassment. They just can’t ban fracking outright.

Gary Pearse
Reply to  commieBob
June 26, 2019 4:58 pm

I worry that there are too many pink Republicans who have spent their lives giving ground to the left. They seem sensitive to charges of being knuckle draggers or flat earthers or yokels by self-annointed “progressives”. (The left always call themselves something they’re not: e.g. Deutsche Demokratische Republik or
Democratic People’s Republic of Korea, etc.)

There’s always been an underlying envy of Europe and Europeans by educated folk of former colonies, including the USA. The US tends to love the King and Queen stuff more than the British Commonwealth nations. Whatever there may have been to envy has been destroyed from within over the past 30 years or so. Don’t follow suit.

Michael S. Kelly, LS BSA, Ret
Reply to  commieBob
June 26, 2019 10:23 pm

Great reference, commieBob. Thanks.

Weylan McAnally
Reply to  commieBob
June 27, 2019 12:24 pm

It is the same with billboard signs. The states apply withering requirements to erect a new sign. 1500 feet spacing, 2 businesses open to the public 40 hours per week, each business must be 400 sf with running water, flushing toilet and attached to the electric grid, no sign within 1000 feet of an entrance or off ramp, etc. Home rule cities can then enact further restrictions on erecting a new sign all the way up to putting an indefinite moratorium on any new signs. Many cities in Texas have done this.

It has been fought out in court. They cannot ban billboards, but they can put onerous restrictions on any new sign. This ruling may actually change how cities can regulate billboards as well. Removing a land owner’s ability to generate income from a billboard is a taking.

Mark Broderick
June 26, 2019 3:00 pm

>…About time !

June 26, 2019 3:21 pm

Now Americans need to go after all these greentards in Civil Court. Sue them into bankruptcy and homelessness. Their children, too.

Michael Jankowski
June 26, 2019 4:55 pm

All because Scott Township couldn’t use a little common sense and acted like a-holes.

Tom Foley
June 26, 2019 4:56 pm

Interesting to find that there are privately owned cemeteries in the US. See

I guess the issue of the private owner’s rights depends on whether the cemetery is a private family cemetery or a public cemetery owned and run commercially by a private owner (or run by a private company who lease the land from a private owner). In the first case, the private owner should obviously be able to control access. In the second case, what are the rights of the customers – the relatives whose family members are buried there?

Let’s say you own a business such as a hotel, open to the public. Can you chose to open it for shorter hours than the legally set ones? Presumably you could but you might lose customers and money. What if you leased your land and/or hotel to someone else? Could you require them to open it for fewer than the legal hours? The customers for a privately owned cemetery are the family who paid for the grave there. Presumably there was a contract for the transaction; would (or should) terms of access to the cemetery and grave be spelt out there?

Or perhaps this an old historic cemetery which is privately owned. In this case the options might be: charge entry fees; arrange for a heritage organisation to conserve and manage the cemetery and organise open days, or access to family graves on application, with a guide; sell the cemetery to local government (or some other organisation) to be maintained as an historical site.

Whatever, the situation seems to be more complicated than just a greens v. property owners stoush.

Jeff Alberts
Reply to  Tom Foley
June 26, 2019 5:01 pm

“Let’s say you own a business such as a hotel, open to the public. Can you chose to open it for shorter hours than the legally set ones?”

Legally set hours??

Tom Foley
Reply to  Jeff Alberts
June 26, 2019 6:32 pm

I am assuming that there are laws setting out the hours that hotels etc can legally serve alcohol, mostly with the aim of limiting consumption, drunkenness etc. I realise it is not a total analogy, but I was speculating whether the property owner could claim that access during legal hours to a hotel situated on their property was an infringement of their property rights.

The cemetery case seems to be based on the claim that legal access to graves is an attack on private property. It doesn’t seem to be a matter of the government actually confiscating the land. If the situation involved visitors vandalised graves, left rubbish around, has drunken parties there, I would agree they had grounds for limiting access; but to complain that the right of access to a cemetery is an attack on private property seems strange.

Jeff Alberts
Reply to  Tom Foley
June 30, 2019 8:22 am

Well, you didn’t mention alcohol, so I wasn’t thinking in those terms. I was just thinking in “open hours”. As far as I know, there are no requirements in the US dictating business hours, apart from serving alcohol. There might be some weird local ordinances, though.

Reply to  Tom Foley
June 26, 2019 6:27 pm

Over thinking on this – not what the case was about. What the ordinance was requiring was keeping the cemetery “open to the general public” – not whether the parties with an actual interest in those buried there were denied access.

Weylan McAnally
Reply to  Tom Foley
June 27, 2019 12:38 pm

This type of scenario has played out in California. There was beach access for many years through private land. The owner allowed public access because he had a business catering to beach goers on the site. The owner sold the land and closed the business. The new owner wanted no beach access across his property. The state of California forced the owner to open access across his property. The owner is allowed to collect a parking fee from the visitors (at 1972 rates), but the fees do not cover costs. Essentially California took his land without compensation and forced him to run a money losing business.

June 26, 2019 5:13 pm

One can only hope that mineral owners in the Southern Tier of New York destroy the state in federal court over their ban on fracking. They are losing millions over nothing but trumped up bullshit on the dangers of fracking.

Tom Foley
June 26, 2019 5:28 pm

Another thought. Do the private owners of the land actually legally own the physical remains of the people buried in the cemetery? Or any headstones, grave markers, fences, decoration? What is to legal ownership of these? If others (eg. descendants, whoever paid for the burial and headstones) own these, what rights of access do they have to their property? What if the human remains on your property are ancient, those of American Indians?

Actually it appears that no-one ‘owns’ a dead body in the US. Graves seem to be more complicated:;

In summary, how would you feel if you were prevented access to a family grave? Would you consider yourself a greentard undermining property rights?

Tom in Florida
Reply to  Tom Foley
June 27, 2019 4:49 am

The SC did not rule on the taking, the ruling was on whether the land owner should be required to go through state and local courts first. The SC said no, they could go directly to the federal courts as it involved a right protected by the Constitution. They also acknowledged that state and local courts have a history of stalling any payments for property taking creating an unjust burden on the property owner.

Lawrence Ayres
June 26, 2019 6:09 pm

Its a pity such a finding is not applicable in Australia where the state can appropriate property without compensation. The worst example has been the lock up of farming property under Native Vegetation acts wherein vegetation cannot be cleared. It is unjust and has caused many farmers the inability to run their land efficiently. We even have a case where a farmer harvested a native tree (mulga) to feed his starving stock and has been fined over $100000. Mulga is drought tolerant and recovers well after lopping and forms part of drought management on many properties. This is a case where government regulation denies a farmer the means to use his property as he sees fit.

Reply to  Lawrence Ayres
June 27, 2019 12:53 am

Australia is a vast, sparsely populated wilderness, with most humans located in the big coastal cities in the South East, it shows how bad Green Ideology has gotten that farmers even there are being harassed.

June 26, 2019 7:23 pm

In summary, how would you feel if you were prevented access to a family grave? Would you consider yourself a greentard undermining property rights?

Perhaps thinking rather than feeling applies in this scenario:

Tom Foley
June 26, 2019 8:13 pm

The farmer in question in Queensland appears to have been fined not for harvesting ‘a’ native tree (mulga) to feed his cattle, but for bulldozing all the trees over large areas of land. PDF]
McDonald v Holeszko [2018] QDC 204. The issue got blown up by radio shock jock radio Alan Jones with no distinction made between lopping trees for fodder and removing them entirely.

Lopping branches off mulga and other tree species for drought fodder is common and legal, the trees reshoot and you have a continuous future supply.…/mulga-lands-fodder-amp.pdf. Queensland even allows selected removal of trees.

Removing the trees altogether over large areas to feed cattle now seems short-sighted and inefficient – indeed not very good farm management. Remove them all now, and you won’t have anything to harvest in future droughts. And there WILL be future droughts.

Tom Foley
June 26, 2019 8:21 pm

Well, there’s a lot of fallacious thinking in these posts: equating an issue of people’s access rights to a cemetery with people’s land ownership rights regarding government confiscation of land or mining rights. Why would people who would like access to a cemetery be just ‘greentards’, aren’t conservatives traditionally inclined to care about family and tradition and mightn’t they wish to access a cemetery?

Michael Patten
Reply to  Tom Foley
June 26, 2019 10:21 pm

The issue is not whether access to the cemetery is good or bad. The issue is whether the landowner or the government decides when access is granted. If the landowner cannot set access policy, then he has lost at least a part of his private property rights to the government and should be compensated.

The reference to the green groups is that their whole strategy is to have government impose decisions on private property owners, again, without compensation.

Reply to  Michael Patten
June 27, 2019 7:09 am

The issue here is which court has jurisdiction – nothing to do with the merits of the actual case. Previous precedent meant that you had to go through the state system first, only once you had gone through the state system, the federal system would not take the case.

Bottom line, this means that people can go straight to the federal courts if they want to challenge a local statute that affects their property rights. The reason it is being considered wide-ranging is that a lot of controls over mineral extraction are local/state and challenging them in state courts is very hard.

Reply to  Rob
June 27, 2019 10:17 am

Moreover if you lost in state court you had no federal case. To win, you had to win both places.

Reply to  Rob
June 27, 2019 3:52 pm

Ding,ding,ding! Want a cigar or a cupie doll? Both are politically incorrect, so it does not matter which you choose.

Helen Good
June 27, 2019 1:17 am

Revoke the cities or states easements for allowing homeless to sleep and go to the bathroom on public sidewalks and property owners take back their property, make it private again. Just an idea Please make comments.

Krudd Gillard of the Commondebt of Australia
Reply to  Helen Good
June 27, 2019 5:15 am

the overwhelming majority of those homeless people have severe drug addiction problems. What should be done is to put them into detoxification programs, which may include sequestration or incarceration for a period of time, and get them off the drugs and functioning again as human beings.

But strangely, our governments pander to the drug addiction, even legalising the scourge, and make it impossible for anyone to do anything about the public menace that develops in the streets. Weird, it does not make any sense. Human lives are being sacrificed for bizzaro political correctness.

Perhaps this is not so surprising when you consider that the same governments believe that falling GDP in the west is inevitable and adopt policies to bring about this outcome.

Strange days indeed.

Reply to  Krudd Gillard of the Commondebt of Australia
June 27, 2019 10:20 am

They usually are mentally ill as well. Dual diagnosis. If we had a mental health care system worth a damn, they could get treatment and many could be functioning citizens.

Reply to  davidgmillsatty
June 27, 2019 3:55 pm

We had one, Democrat Party destroyed it. Oh, with help from ACLU, AMA, NAACP etc etc. Don’t want to forget to thank them for their “contributions”, America hating f**kbags.

Reply to  Helen Good
June 27, 2019 5:45 pm


I don’t think they would need to make it private again. (and in reality ‘they’ couldn’t).

If the local government entities had any guts they would try to codify the purpose; or at least under new dedications, qualify that: “the purpose of the dedication is not intended to allow for any scumbag begging, pooping, sleeping, or similar activities that are inconsistent with the primary intent of travel, transportation, & utility services within the public rights-of-ways.
The streets, sidewalks, & right-of-way are not intended as recreational areas, parks, long term congregation areas, or excrement disposal areas”.

Surprisingly Eugene, Oregon just passed an ordinance stating that the park strip (between curb & sidewalk) is somewhat controlled by the abutting property and the property owner can kick the sleepers/poopers off as trespassers.

Most public street ‘right-of-way’ (including sidewalk areas) were dedicated very simply, as public right-of-way. The intent is/was primarily for transportation purposes. Court case (in Oregon) allowing begging in a park (public space) as free speech has been interpreted as allowing begging anywhere, so we allow beggars everywhere … simple code addition, defining what the streets & sidewalk are for, might work (or it might be ACLUed under the argument that the streets are the only place where the poopers can express themselves freely)

Jeff Alberts
Reply to  DonM
June 30, 2019 8:27 am

“Surprisingly Eugene, Oregon just passed an ordinance stating that the park strip (between curb & sidewalk) is somewhat controlled by the abutting property and the property owner can kick the sleepers/poopers off as trespassers.”

In Seattle, you’d get arrested if you touched them. And the police won’t respond if you report trespassing. That’s why I live in a rural area way north.

June 27, 2019 10:36 am

The vote on that one was most revealing for its legal and political bias/strategy that had been in operation for so long to the detriment of citizens and property rights. Fairness and the Constitution are back!

June 27, 2019 10:39 am

The main concern of the libs was in further exposing the political bias in the Federal courts with these potential suits in future over reach operations.

June 27, 2019 3:41 pm

Another hit to state rights and more power to the Feds. Whats to like about that?

Reply to  Pft
June 27, 2019 3:58 pm

States Rights died after the Democrat Party started, and lost, their war to keep negroes in slavery. Go cry to them.

Reply to  Pft
June 27, 2019 5:47 pm

“States rights” and “States power” are two very different things.

I think you are confused.

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