Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Thursday, September 21, 2006

Property owners have rights, don't they?

The Seattle Times reports that the cost to individual property owners of what are sometimes called "regulatory takings" of private property amounts to more than a billion dollars a year in Washington state:

A statewide property-rights initiative on the November ballot would cost the state, counties and cities $7 billion to $9 billion over the next six years, the state budget office estimated Wednesday.

That's a lot of money to take from property owners.

Initiative 933 would end this wrongful taking -- putting the burden of paying for the taking where it belongs, on the people who supposedly benefit from these takings.

What could be wrong with that? If the benefit of these regulatory takings isn't worth so much money to the beneficiaries, they can simply leave the property owners alone.


Blogger Paul Hirsch said...

Any thoughts on how I-933 might affect water rights -- particularly transfer of water rights?

October 03, 2006 7:52 PM  
Blogger Micajah said...

That's an interesting question.

I don't claim any special knowledge, but I doubt I-933 would have any effect on water rights.

This brief description of Washington law on water rights indicates that no individual owns the water that flows on the surface or underground.

If it isn't owned by an individual, it isn't private property -- and thus cannot be subject to any sort of "taking" that requires compensation to the owner.

October 03, 2006 9:14 PM  
Blogger Micajah said...

Now that I've looked at your profile, I see that I should ask you what you think!

Here's the initiative's definition of "private property":
Section 2(2) For purposes of this act, the following definitions apply:
(a) "Private property" includes all real and personal property interests protected by the fifth amendment to the United States Constitution or Article I, section 16 of the state Constitution owned by a nongovernmental entity, including, but not limited to, any interest in land, buildings, crops, livestock, and mineral and water rights.

So, the drafters put an interest in water rights into the same category as any other private property.

I wonder what effect that would have if any government entity wanted to change the existing water rights.

October 03, 2006 9:25 PM  
Blogger Paul Hirsch said...

I attended a CLE on I-933 a few weeks back. Just at the end, a member of the audience -- unknown to me, but by manner and dress, probably an east of the Cascades attorney -- suggested this initiate was really about water rights. I didn't have a chance to speak with him afterward to ask for an explanation.

I have recently read the chapter on sales and transfers of water rights in Gregiore et al's 2000 treatise on Washington water law, but found nothing that particularly lit any bulbs in my head. Now I am working through the treatise front to back, but I don't hold out much hope to find the answer to this particular question.

What I think I know is that DOE has to approve sales/transfers, and that the market for water rights in Washington is extremely small, ie., few sales/transfers reported by the Water Strategist.

My next project is to see if there are any post 1995 DOE regulations or policies that, if 'inhibited' by I-933, would make sales easier.

October 07, 2006 6:47 PM  

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