Why MN's Buffer Law is NOT an unconstitutional taking
At this morning’s joint House Environment and Natural Resources and Agriculture committee hearing on implementation of Minnesota’s buffer program, we had the pleasure of hearing a whole lot of righteous pontificating about the finer points of Fifth Amendment jurisprudence as it pertains to the taking of private land by the government.
Three major takeaways—first, there is a huge effort underfoot to mislead the hell out of people about an area of law that well established and known; second, there exists such a thing as a JD from an unaccredited correspondence law school; and, third, they apparently produce some graduates who either don’t know or don’t care about the reality of how the law works just like the fancy top-tier law schools do.
Today’s joint committee hearing comes on the heels of the introduction of HF 167, a bill to entirely repeal the buffer law, and much discussion by Republican legislators about their intention to at least weaken the law’s requirements. I’ll write a subsequent post next week on the substantive merits and shortcomings of the existing buffer law, but feel compelled to address this issue of the law’s constitutionality right now so that I spend the rest of the day sputtering “bbbbut but but, that’s not how it works” to whomever unfortunate person in my general vicinity.
Opponents to the buffer law are attempting to claim that it constitutes a taking of private land by the government without just compensation which, if true, would violate the Fifth Amendment of the US Constitution and Article I, Section 13 of the Minnesota State Constitution. Since the government isn’t physically occupying people’s private land under the buffer law but, rather, limiting its permissible uses, the relevant legal analysis pertains to whether the law constitutes a regulatory taking. Spoiler alert—the answer is no.
Here’s a little overview of regulatory takings law under both US and Minnesota Law. It’s borrowed from a report I put together for the Land Stewardship Project supporting the legality of banning frac sand mining and related operations. And that ban applied to 100% of a landowners property—not just a 16-, 50-, or some other number foot strip. Here’s the analysis from the report:
In the seminal case on regulatory takings under the U.S. Constitution, Lucas v. South Carolina Coastal Council, the U.S. Supreme Court held that a “total taking,” that is a regulation that constitutes a taking as a categorical matter, exists when a government regulation deprives a property owner of all economically beneficial use of his or her property and the regulation is not consistent with “restrictions that background principles of the State's law of property and nuisance already placed upon ownership." A regulation that does not qualify as a total taking could still be a taking per se based on the particular facts of the case and the court’s “careful examination and weighting of all the facts.” In evaluating whether a regulation that stops short of denying all economic use of a private property can still constitute a per se taking, courts will analyze a complex set of factors established by the Supreme Court in Penn Central Transportation v. New York City. These factors look at the totality of the regulation’s economic impacts on the property owner, the degree to which the regulation interferes with the property owner’s reasonable investment-backed expectations, whether the benefits of the regulation are shared by many while its costs are imposed on a few, and whether there exists any “average reciprocity of advantage” in which the property owner burdened by the regulation also shares in the public benefits it creates.
In 2002, the U.S. Supreme Court addressed in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency the issue of whether a moratorium on a land use constitutes a taking under the federal constitution. In looking to its prior precedents, the Court held that precedents from takings cases involving the government’s physical interference with or occupation of private property (that is, the public use of private property) are not applicable to cases where there is a claim of a regulatory taking resulting from the government prohibiting a private use of private property. The Court also reaffirmed that the categorical rule established in Lucas is inapplicable to any regulation that does not “100%” eliminate all “productive [and] economically beneficial use of [the] land.”
Minnesota’s jurisprudence around takings challenges that arise under violations of the state constitution is notably different than that of the U.S. Supreme Court. Under the U.S. Supreme Court decision in Williamson County Regional Planning Commission v. Hamilton Bank, a petitioner cannot bring a Fifth Amendment takings claim in a federal court until she has exhausted state proceedings for just compensation (i.e., condemnation proceedings) and, under the Court’s subsequent decision in San Remo Hotel v. City of San Francisco, the litigant also cannot bring the claim once it has been decided by a state court.  Furthermore, the takings clause of the Minnesota Constitution is more expansive than that of the U.S. Constitution. The approach of Minnesota courts to takings claims is to engage 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.”
As such, were the buffer law challenged as a taking under either or both U.S. and Minnesota constitutions, it is Minnesota case law that would be the primary determinant of how these claims would be evaluated. Let’s continue:
Under Minnesota case law, a regulatory taking occurs when a government regulation reduces the economic value of a property so much that the property owner is unfairly left to “bear the burden rightly borne by the public.” Minnesota courts will apply the “enterprise-arbitration” test to determine whether a [regulation] that diminishes the value of private property constitutes a taking. Under this test, a [regulation] that serves a government enterprise (that is, benefits the government financially from use of the land) and results in substantial loss of value for a property owner may be a compensable taking. However, when a [regulation] serves to arbitrate between competing land use interests . . . and is based on the exercise of valid planning or police powers, then the court will look to whether the regulation deprives the property owner of all reasonable uses and, if it does not, then the regulation is not a taking. Furthermore, the entire burden of demonstrating that the [regulation] prevents all reasonable uses of the property rests with the property owner bringing the takings claim and fails if any secondary uses for the property exist.
Stop. Do not pass go. Do not collect an injunction. Unless the buffer law deprives property owners of all economically beneficial or reasonable use of their properties, it is NOT a regulatory taking. But wait, that’s not all! While the existence of even one reasonable use for the land is enough for the courts to uphold a regulation, the court can also get to the same conclusion based on the fact that the buffer law produces large economic, environmental, and health benefits in which the burdened property owner shares while comparatively imposing small private costs.
There you have it. Legislators, agency administrators, county officials, and other members of the government need not fear that the buffer law constitutes an unconstitutional taking—claims to the opposite are a poor disguise for yelling “you darn scientists, get off my lawn.”
 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.
 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra note 135.
 Id. at 322.
 Id. at 330.; Lucas v. South Carolina Coastal Council, supra note 134 at 1017.
 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).
 State by Humphrey v. Strom, 493 NW 2d 554, 558 (1992).
 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).
 Zeman v. City of Minneapolis, supra note 143 at 552; Westling v. County of Mille Lacs, supra note 142 at 823; Meriwether Minnesota Land & Timber v. State, 818 NW 2d 557, 570 (2012); Armstrong v. United States, 364 US 40, 1569 (270AD).
 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).