Yesterday’s joint House Environment and Natural Resources and Agriculture committee hearing on implementation of Minnesota’s buffer program included quite a number of statements from legislators and testifiers claiming that the law constitutes a taking of private land by the government without just compensation in violation of the Fifth Amendment of the U.S. Constitution and Article I, Section 13 of the Minnesota State Constitution. The hearing followed the introduction of House File 167 which seeks to entirely repeal the buffer law. Members of the GOP majority party have been vocal in expressing their intentions to, if not repeal, significantly weaken the existing buffer law. We’ll post more on the substantive merits of the buffer law in the coming weeks, but want to give immediate attention to this issues of the law’s constitutionality given what appears to be an attempt to mislead legislators, county and watershed officials, and the public alike.
A government taking of private land can be either physical, as when the government physically invades or takes possession of private land, or regulatory, as when a government regulation limits the permissible uses of private land to the extent that it effectively deprives the owner of its use or value. Since the buffer law doesn’t involve a physical occupation or seizure of private land by the government but, rather, a limitation on the permissible use of a portion of the land, the relevant legal issue is whether the buffer law constitutes a regulatory taking. It does not. The short answer is that, to win a takings challenge in court, a property owner would have to demonstrate that the buffer law deprives them of every and all reasonable uses of their property.
The U.S. Supreme Court held in the seminal case Lucas v. South Carolina Coastal Council that a government regulation constitutes a “total” or categorical taking of private property only when two conditions are met: (1) the property owner is denied all economically beneficial use of their property and (2) the regulation is inconsistent with the principles underpinning other property and nuisance laws to which the property and property owner are already subject. If this criteria is not met, a regulation could still be a per se taking based on the court weighing the particular facts of the case according to a complex set of factors established by the Supreme Court in Penn Central Transportation v. New York City. Those factors include: (a) the total economic impact of the regulation on the property owner, (b) the extent of the regulations interference with the property owner’s reasonable investment-backed expectations, (c) whether the regulation’s benefits are broadly shared and its costs shared by a few, and (d) whether the burdened property owner shares in the public benefits created by the regulation.
It’s important to note that the buffer law opponents who claim it’s a government taking have exclusively made their arguments citing the Fifth and Fourteenth Amendments of the U.S. Constitution to the exclusion of Minnesota state law. This ignores the very significant fact that the U.S. Supreme Court has held that (a) a petitioner can’t bring a Fifth Amendment takings case in federal court until they’ve exhausted the proceedings that are available to them at the state-level and (b) that they also can’t bring the federal claim once it’s been decided by a state court. Furthermore, takings challenges arising under the Minnesota State Constitution are subject to a notably different set of legal requirements and standards. The approach of Minnesota courts to takings claims in engaging in inquiry that is ““highly fact-specific, depending on the circumstances underlying each case” and to apply analysis that “relies heavily on reasoning by analogy to previous takings cases.” What this means is that a takings challenges to the buffer law, whether arising under the U.S. or Minnesota constitutions or both, would be decided primarily on the basis of Minnesota case law.
Under Minnesota case law, a regulation that reduces the value of private property is determined to be a taking under the “enterprise-arbitration test.” A regulation that serves benefits the government financially from use of private land and results in substantial loss of value for the property owner may be a compensable taking, except when the regulation helps to arbitrate competing land use interests and is based on valid government powers to protect the public health, engage in planning, etc. When such arbitration exists, the court will only find a taking if the regulation deprives the property owner of all reasonable uses of the property. Also important to note: the property owner bears the entire burden of proving that the regulation prevents all reasonable uses of the property. If any secondary uses for the property exist, the claim fails.
We’re certain these takings arguments will appear again and again, but they are not a legitimate reason to weaken or repeal the buffer law.
 Id. at 330.; Lucas v. South Carolina Coastal Council, supra note 134 at 1017.
 Lucas v. South Carolina Coastal Council, 505 US 1003 (1992).
 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 321 (2002); Penn Central Transp. Co. v. New York City, 438 US 104, 124 (1978); Palazzolo v. Rhode Island, 533 US 606, 636 (2001).
 Penn Central Transp. Co. v. New York City, supra note 135.
 Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 US 172 (84-4); San Remo Hotel, LP v. City and County of San Francisco, 545 US 323 (2005).
 Decook v. Rochester Intern. Airport, 796 NW 2d 299, 305 (2011); Westling v. County of Mille Lacs, 581 NW 2d 815, 823 (1998).
 Decook v. Rochester Intern. Airport, supra note 142 at 305; Zeman v. City of Minneapolis, 552 NW 2d 548, 552 n. 3 (1996).
 McShane v. City of Faribault, 292 NW 2d 253 (49531); Concept Prop. v. City of Minnetrista, 694 NW 2d 804, 822 (2005).
 McShane v. City of Faribault, supra note 145 at 257; Concept Prop. v. City of Minnetrista, supra note 145 at 283.
 Czech v. City of Blaine, 253 NW 2d 272, 274 (46481).