Why Inverse Condemnation Is One of the Most American Things We Do

John Fiske is an attorney who represents victims of the 2017 fires.

At the height of the American Revolution, the British government routinely seized the land and property of colonists for the King’s invading armies. So too did the colonial governments, taking land and property for the Continental armies. At that time, neither the U.S. Constitution nor the Bill of Rights had been created, and both Britain and the colonies drew their legal authority from the Magna Carta, which recognized Eminent Domain, but without fair compensation.

Eminent Domain was and is the idea that the government may confiscate or destroy private property if necessary for the greater good, or public use. By the end of the American Revolution, Americans had become so violated by the government takings, the principle of American Eminent Domain was born.

Drafted into the Fifth Amendment of the Bill of Rights, American Eminent Domain states, “nor shall private property be taken for public use, without just compensation.” These three words established the founding fathers’ will that private property was to be valued and protected, especially against government taking.

California’s Constitution also affirms the importance of just compensation at Article I “Declaration of Rights,” Section 19: “Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to…the owner.”

“…only when just compensation…has first been paid… to the owner.

Recently, Californians suffered both the largest and costliest wildfires in state history. In the North Bay, 14 fires raged, destroying over 6,000 homes—8,000 structures in total—taking 44 lives. In Southern California, the Thomas Fire burned over 280,000 acres, destroying over 1,000 homes, and taking 22 lives in a devastating mudslide caused by the fire. It is widely thought, as has been alleged in California courts, that two investor-owned utilities caused these fires—Investor-owned utilities (IOU’s) are publicly traded corporations that have been granted special privileges and powers by the State. The California Legislature has given investor-owned utilities Eminent Domain power, a monopoly over millions of customers; and, guaranteed profits for  returns to Wall Street investors. In 2017, the year of these fires, PG&E posted record net profits of $1.7 billion.

Pacific Gas & Electric in the north, and Southern California Edison in the south. It was their electrical equipment that destroyed the private property, homes, and invaluable possessions of over 7,000 families.

The legal principle of Inverse Condemnation is the people’s right to enforce the constitutional providence of Eminent Domain—that is, for just compensation. Inverse Condemnation is the legal right of the private property owner whose property has been destroyed under authority of the government. Without inverse condemnation, the people have no pathway to enforce their constitutional property rights. By taking away every private property owner’s ability to enforce their constitutional Eminent Domain rights, the State blesses and authorizes multi-billion dollar corporations’ actions damaging private property without just compensation. This includes weakening those constitutional rights in the name of “energy market stability.”

Over the last five months, corporate executives from PG&E and SCE have been lobbying the Governor and California State Legislature to take away fire victims’ ability to enforce their constitutional, Eminent Domain rights in order to reduce their corporate liability for causing the 2017 fires. As shocking as it seems, the Governor and some legislators are listening.

PG&E and SCE designed and used their electrical systems in a way that caused the North Bay and Thomas Fires—that is, they intentionally designed their vegetation management plans, re-energizing policies, and high-wind policies in a way that caused the most destructive and largest fires in state history.  Now, instead of compensating the families who lost their homes, the corporate executives negotiate behind Capitol doors to take away those families’ constitutional rights. The same motivation—profit—that fostered poor management and policies, now drives executives to rob fire victims of their property rights.

Failing to follow good and accepted management practices, ignoring vegetation management policies, not adopting adequate high wind policies, and re-energizing fallen lines caused these utility wildfires. Instead of taking away our constitutional rights, the legislature and governor should enforce basic public safety policies.

Why the California Legislature does not see the unfairness of taking away fire victims’ constitutional rights in the aftermath of losing their homes and property is baffling.

Our communities—including fire victims, survivors, neighbors, businesses, and local governments—must stand up for our constitutional rights in the wake of the inferno the IOU’s equipment created.

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