Property is property. End of story.

December 13, 2018 | By DAVID DEERSON
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Today we filed an amicus brief in the Minnesota Supreme Court to make sure they apply the correct analysis when considering a Takings Clause challenge.

Winona County, Minnesota recently banned the mining of silica sand, a material often used in fracking operations outside the state. Before the ban, Minnesota Sands, LLC, a mining company, entered into leases with several property owners giving it the exclusive right to mine silica sand on those properties. At the time, such mining activities were permitted by the county upon the grant of a conditional use permit. But because of the ban, the leases are now worthless.

The Fifth Amendment provides that “private property shall not be taken for public use, without just compensation.” When government regulations severely limit a person’s property rights, it may constitute a “regulatory taking.” That would seem to be the case with Minnesota Sands. Yet the Minnesota Court of Appeals held that Minnesota Sands could not maintain a takings claim because they did not really have a property interest, given that it did not obtain a conditional use permit. The problem is, it can’t get the permit because the once-permitted activities are now banned outright.

Not only is this reasoning circular, but it fundamentally misunderstands the nature of property. Property, for purposes of the Fifth Amendment, is far more than merely title to an object or land. As the Supreme Court has explained, property “denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it.” United States v. General Motors Corporation, 323 U.S. 373, 377-78 (1945). The Takings Clause “is addressed to every sort of interest the citizen may possess.” Id. at 378. Property cannot be defined away by the very government action challenged as a taking.

Minnesota Sands did own property rights in its leases, and thus the Minnesota Supreme Courtanalyze its takings claim on the merits. We weighed in to make sure they do so.