Legal Problems with Rep. Reed’s “Property Rights Act”

Author Leslie Danks Burke is an attorney. She was a candidate for U.S. Congress in New York’s 23rd district in 2012.

“When government gets out of its rightful lane, people get hurt,” writes Congressman Tom Reed in a March 23 op-ed. He offers this as a dubious defense of his own drift out of the federal lane to interfere with state law.

Mr. Reed has introduced the so-called “Defense of Property Rights Act,” a proposed federal law to undo New York State’s fracking ban by making the ban overwhelmingly expensive. In a nutshell, Mr. Reed wants New York State to pay landowners for shattering dreams of gas-induced riches.

Among several problems with Mr. Reed’s idea, two glaring concerns stand out. First, it problems-3disregards powers held by states and expands the scope of federal government. Second, it attempts an end-run around at least a century of jurisprudence on the Constitutional law of “takings.”

The Constitution does not give Congress free-standing power to undo state-level decisions. Sometimes, where the Commerce Clause is triggered, for example, Congress may step in to regulate “economic activity,” which has a certain legal definition. But shoehorning a supposed right to drill into the Commerce Clause is on the outer edges of federal power and may be unconstitutional. It’s certainly the sort of law that a Congressman who believes in limited government should not support.

Mr. Reed says expansion of the federal government is necessary in this instance to “promote accountability and responsible policymaking” at the state level.

Let’s roll with the idea that it’s part of a federal representative’s job to reach into state law and regulate payment burdens that aren’t there. The next problem is that the payments Mr. Reed wants to force are not “rights,” as much as he wishes they were in the Constitution.  Mr. Reed knows this. He says he’s “forcing the government to provide compensation to affected property owners . . . Today, those individuals are not eligible for relief.” His legislation would create new government payments.

It’s a basic tenet of “takings law” that the government may only take private property for public use, and it has to pay the property owner first. If the government takes land to build a highway, for example, the owner must be paid.

Should the government pay the property owner if it doesn’t actually take the land, but instead issues regulations that limit how the owner uses the property? Sounds kind of reasonable on the surface. But what if a homeowner wants a lucrative truck stop in his back yard, yet the village does not allow truck stops in residential neighborhoods? Do we want that owner to sue the village for payment, because his truck stop can’t go in? What if a developer wants to build a spa resort complete with a tranquility pond, but the only property he owns is in the middle of a noisy shopping center? Does the city owe the developer money because he is unlucky enough to own land in a shopping center zone instead of a placid field?

The US Supreme Court says if the property owner is still able to make profitable use of his property, even if not the dream use, a regulation does not trigger the need to pay the owner.

Mr. Reed wants to overturn the Supreme Court’s Constitutional interpretation by statute and expand the government into paying property owners for things like zoning law changes and fracking bans. But Constitutional law does not get changed through legislation, and I’d be surprised if Mr. Reed doesn’t understand this. More likely, he’s drifting into state policy to score quick political points.

“I will continue pressuring [Governor Cuomo] to reconsider his state-wide ban on natural gas development,” says Mr. Reed. So far, Governor Cuomo appears to be staying the course despite Mr. Reed’s intrusion – perhaps the best approach when a federal representative gets out of his rightful lane. We don’t want anyone to get hurt.

About pystew

Retired Teacher, political science geek, village trustee. I lean a little left, but like a good political discussion. My blog, the New NY 23rd (http://newny23rd) is about discussing the issues facing the people of our new congressional district. Let's hear all sides of the issues, not just what the candidates want us to hear.
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36 Responses to Legal Problems with Rep. Reed’s “Property Rights Act”

  1. Barbara Griffin says:

    Tom Reed is FAR out-stepping his boundaries on this one. Just looking for a pat on the head from the fossil fuel industry.


  2. Excellent piece, Leslie. Mr. Reed shows himself not only to be a venial politician, but a poor attorney.


  3. Ann Sullivan says:

    Excellent piece. I also suspect much of this legislation was written by oil industry attorneys. I


  4. solodm says:

    Thanks for this piece, Leslie.
    In the dictionary, under the word “opportunist” – Tom Reed’s picture would be appropriate. Wasted time and taxpayer money is spent by Tom Reed on self promoting pieces of legislation. Red meat for the base.
    As of this date, there are zero co-sponsors of H.R.510 – “To establish a uniform and more efficient Federal process for protecting property owners’ rights guaranteed by the fifth amendment.”
    Sadly, Tom Reed just doesn’t get it, the informed majority of Reed’s constituents know – the emperor has no clothes.


  5. Anne says:

    Thank you for taking the time to write this, Leslie, and I think it ought to be read aloud at the very next meeting of whatever landowner’s association Tom is currently trying to hoodwink. I wish this were a matter for the ABA to take action on; one of its members behaving this badly ought to be a matter of concern for them, as much as it is for the rest of us who have to endure his shenanigans.


  6. whungerford says:

    By ALEC, I believe.


  7. whungerford says:

    Scott Kurkoski, attorney for the JLCNY said: “Congressman Reed’s Defense of Property Rights Act provides that government may not take private property, including oil, gas and mineral rights, in part or in whole, temporarily or permanently, without just compensation. The Act will allow all landowners aggrieved by Governor Cuomo’s hydraulic fracturing decision to pursue Fifth Amendment claims for the taking of their mineral rights. It will also level the playing field by allowing us to pursue these claims in federal court.”

    Attorney Kurkoski seems to believe Reed’s bill has merit. Is this a responsible legal opinion?


  8. josephurban says:

    In fairness to Reed he has never held himself out to be a Constitutional scholar. Or a legal expert. Or a scholar of any kind. In fact, he has never held himself out to be very bright about anything. He’s just a regular guy who’s family lived on Social Security who wants to cut Social Security. Simple folk.


  9. whungerford says:

    Superpages ad for Law Offices of Thomas W. Reed:

    Our law office is a full service firm that has the local experience that your case needs. We have DWI Attorneys, Personal Injury Lawyers, and many other expertises. Whether you have a Real Estate need or even Criminal Case our expert lawyers can assist.Our professional office is well staffed with excellent attorneys and support staff that will be able to fully meet your legal needs.


  10. pystew says:

    The article points out that the land-owner is not “harmed” by NYS’s banning decision. They still own the land and the minerals.

    The Village of Penn Yan has had a few Article 78’s lawsuits questioning the legality of some decisions we have made. The Court dismissed the lawsuits because the person who is suing the Village did not have “standing”, or, he had not been “harmed”. The angered tax-paying residents assumed they would have “standing” in cases they thought that the Village didn’t follow the regulations when spending their tax money. They were wrong.

    Land-owners want to trust their Attorney-Congressman when he assures them that they have been “harmed” by NYS, and it says so in the US Constitution. They are wrong. Their Attorney-Congressman is also a politician whose goal is to get in power, and to stay in power. They are being used.


  11. josephurban says:

    But…but…but…When he was running for Congress he never told me he was an ambulance chaser !

    Liked by 1 person

  12. whungerford says:

    Ms. Burke wrote:
    The US Supreme Court says if the property owner is still able to make profitable use of his property, even if not the dream use, a regulation does not trigger the need to pay the owner
    Tom Reed’s property, mineral rights, is worthless if he isn’t allowed to produce gas. Similarly farmers may argue that farming is unprofitable without income from mineral rights. Are these arguments valid?


  13. josephurban says:

    How does this work? If I think I may have uranium on my land but the government won’t allow me to bring in heavy equipment and dig up my own property to find out…I…uh…get to decide how much money I COULD have made IF I had uranium on my land? Or if I want to have a constant “Battle of the Bands” on my land but the local noise ordinance prevents that. Does that mean I can calculate how much money I might have been able to make over the next 25 years and the state of New York will compensate me? Sounds like a great law ! CHA-CHING. Now, where did I put my sousaphone? and Geiger counter?


  14. BOB McGILL says:

    DEC issued 167 drilling permits in 2013, down 35% from the previous year:
    •140 oil
    •3 natural gas
    •8 stratigraphic
    •14 brine
    •1 storage
    •1 geothermal
    In 2013 DEC issued permits for wells in 12 counties; the top 3 based on total permits were Cattaraugus (110), Allegany (27), and Wyoming (13).

    •Oil well drilling permits were issued for Cattaraugus (110), and Allegany (26), and Steuben (4) Counties.
    •Gas well drilling permits were issued for Chenango (2), and Erie (41) Counties.


  15. BOB McGILL says:

    if the law currently says you can have a “Battle of the Bands” and someone changes the law, you can have a “Battle of the Bands” . If they stop you, you can sue for your loss. It’s called being GRANDFATHERED ! Ever heard of that before ?


  16. BOB McGILL says:

    By the way, your property rights are protected under the Constitution, which seems to mean very little here in New York.


  17. pystew says:

    You can still drill and sell your natural gas. You can not use the process that poisons our land.


  18. pystew says:

    So are State’s Rights.


  19. josephurban says:

    Bob. You don’t understand the concept of being “grandfathered in”. It does not mean that if the law changes you are now allowed to continue to violate the new law. Example. Everyone drank alcohol before Prohibition. Once Prohibition was passed they were not “grandfathered in” and still allowed to drink alcohol. So, a municipality can change zoning laws anytime they want. Can I be given compensation by the state if the new zoning law stops me from making excessive noise with my Battle of the Bands? I say YES. the local government is preventing me from making money on my property. This bill seems to destroy all local control over zoning.


  20. josephurban says:

    “Property rights” have never meant that you can dispose of your property and carry on any activity on your property that you want. For example, A property owner cannot turn his yard into a garbage dump for toxic waste. Why not? Because, YOU are not the only one with property rights. OTHER PEOPLE have property rights, too. The right to have a reasonably safe, toxic free property.Clean water. Etc. The basics that allow society to function.


  21. Ok Land Use Planner here who worked with Tom when he was the Town Attorney. Actually, Tom admitted to me that he doesn’t know everything! Ha. A nonconforming use can continue indefinitely except if you stop the use. After a certain period of time passes, you cannot reconstitute the “use.” You cannot change the use by expanding it either in intensity of use or by physical modification. The nonconforming use may also have the time period reduced in the zoning code, e.g, the nonconforming use must be discontinued 10 years from the date of this law being enacted.

    Ms. Burke has made a good point about zoning changes of which hundreds of thousands are made each year and it would be frivolous to require the government compensate for each and every case.

    Generally, in Article 78 proceedings, the courts will not supersede the judgment of the local legislature, particularly when there is good documentation of the local legislative decision (Tom knows this as he was a stickler about documentation—contrast this with the enormous amount of documentation that the DEC and the Dept. Of Health has to support their decision to ban fracking.)

    Finally, there is no way to determine what the market value of the gas that has not “yet” been drilled. Therefore, we have a “ripeness issue.” With “investment backed” expectations, there has to be a permit issued (and that is moot since none were issued) making his entire case baseless. Probably why no one has cosponsored the bill. Every state in the Union has different land use laws and jurisprudence. To dip your toe into this muck would be catastrophic.


  22. A correction: a permit applied for and denied or a permit issued and then denied.


  23. Deb Meeker says:



  24. solodm says:

    Well, Bob, “if someone changes the law” that means the new law – is the law. Just like the law that proclaims black people can now marry white people. I doubt there will be many law suits about that, especially ones that would conclude that “someone was hurt by the marriage”.


  25. Anne says:

    Ambulance chaser would be a step up for Reed.


  26. Judi says:

    Thanks for a great article on this bill. What has happened to State rights? My village does not permit any more student housing in the area where I live. Could I sue under this law if passed? We can come up with all kinds of regulations and protections passed for the collective good, which comes before individual rights. This is an attempt to earn all the money that the oil and gas industry donated to his campaign… many of those wells. and pipelines leaked this past winter?


  27. BOB McGILL says:

    Ah, they fracked gas wells in New York before. The DEC has a record of it going back decades. From the DEC, ” Hydraulic fracturing is a well stimulation technique which consists of pumping a fluid and a proppant such as sand down the wellbore under high pressure to create fractures in the hydrocarbon-bearing rock. No blast or explosion is created by the hydraulic fracturing process. The proppant holds the fractures open, allowing hydrocarbons to flow into the wellbore after injected fluids are recovered. Hydraulic fracturing technology was first developed in the late 1940s and, accordingly, it was addressed in the 1992 GEIS. It is estimated that as many as 90% of wells drilled in New York are hydraulically fractured. ICF International provides the following history: “


  28. pystew says:

    Bob, we have been through this before.The fracking you are talking about is vertical drilling and they do not use the massive amounts of water and the the 21st Century fracking contains much stronger poisonous soup. You do realize the point of this article isn’t the history of fracking. It has nothing to do with the fracking at all, but Reed trying to get support from land owners who think that the government owes them something.


  29. josephurban says:

    It’s those conservatives trying to get something for nothing from the government again.


  30. BOB McGILL says:

    the DEC says the process is exactly the same, just more water,more safe chemicals and a longer bore hole. This debate is about you twisting the facts to deprive people of their constitutional rights. Your communist ideology won’t work !


  31. pystew says:

    Cite your source.


  32. josephurban says:

    Actually, if you care to read the list of hundreds of chemicals used in the process (posted on the DEC) I doubt that any scientist or sensible layperson would list them as “safe”. Nowhere does the DEC list them as “safe”. In fact, they must be suspended and kept from the water supply precisely because consuming them is not considered “safe”. (Give me a shot of benzene with that donut) Fracking has been done in the past but not HVHF. That is not only relatively new but also potentially much more harmful because of the increase in the number of chemicals and the depth at which it occurs. I, for one, am thankful that in this area at least we have governor who listens to scientists instead of the unsubstantiated industry claims of safety. Rare for a governor today.
    Where in the Constitution does it give you the right to destroy my well? What makes you think you have a “Constitutional right” to crap on other people?


  33. Maureen Harding says:

    The process is NOT exactly the same. That is why we are where we are. A new Supplemental Generic Environmental Impact Statement was required as well as new “rules” for Horizontal Hydraulic Fracturing (as opposed to the verticle type). The Findings Statement that ends the Final SGEIS process will state that the Horizontal Tupe results in potentially significant negative environmental impacts. Therefore, that is how we get to no horizontal Fracking in NYS. Did I mention that DEC is a former Employer before I moved to the DOT? What I learned there is that there is no such a thing as “cleaned up.” In fact, this is a fact that both the EPA, NYS Dept. Of Health and the DEC learned in the early part of the 2000s. This is not a Communist idea…the process is fully democratic. What Corporations have succeeded in doing is replace our democracy with making sure we no longer have equal rights as a people. Since they think that they are “persons” (although they are creations of government and not God), they now have more rights than we the people . That is called plutocracy where the government is controlled by a privileged few. Frankly, I don’t know how TOM Reed can have any sort of conscience since he is in collusion with them.


  34. Maureen Harding says:

    Bob–actually your argument is in direct contravention of Reed’s property rights bill. Since you are still able to do verticle hydraulic fracturing on your property under current NYS law, that means you can still derive economic benefits. This is Precisely why Reed’s bill is frivolous.


  35. PAUL MAISANO says:

    This is not a new discussion. It was started nearly a 100 years ago in the Village of Euclid vs. Amber Realty SJC decision. It was modified a few years later in the 1926 Pennsylvania coal decision with Justice Holmes defining when a government goes “too far”. For those who confuse the two issues a cursory read of these two cases would assist you in gaining a history of this issue. At the core is a ‘physical occupation’ vs. ‘non physical regulatory occupation’ although similar they are distinctly different. Over the last quarter century the SJC has skated over the top of this slippery slope attempting to protect constitutionally driven private property and equally addressing the environmentally driven lobby. Its time the matter be resolved! Governor Cuomo has politically hijacked millions of dollars in value from private property owners by fracturing our free private commerce. Thanks to New York Representative Reed the conversation to end a century old scary matter has begun. It is my preference that this complicated issue be resolved by Congress and not the SJC, however, my prediction is it will ultimately end up in the laps of the courts.


  36. Dr. John A Novinski says:

    Well, the game changer here is that Dr. Zucker’s report is based on pretty bad science. It is almost fraudulent. The very radicalized environmentalists will have a shock when they realize that good science always wins. Even if junk science in Zucker’s report is heavily supported by the evil Park Foundation .with tones of money


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