Senator Valentino, Representative Priest, and members of the Judiciary Committee. My name is Pete Didisheim. I am the Advocacy Director for the Natural Resources Council of Maine, and I appreciate the opportunity to testify in opposition to both LD 1039 and LD 1450.
For many of us here today, consideration of these bills is deja vu all over again. Legislation very similar to these bills was considered at length during the 125th Legislature. Those bills were defeated with bipartisan majorities, as were bills in 1995, 2000, and 2003.
A similar pattern has played out across the nation. Takings bills like these were introduced in many states in the mid-1990s, and have cropped up occasionally since, and they have been defeated time and time again — and for good reasons.
Proposals like LD 1039 and LD 1450 could result in thousands of compensation claims against the state, demanding millions of dollars in payments from Maine taxpayers, creating a cascade of lawsuits, and undermining Maine’s ability to make prudent land use and other regulatory decisions in support of the public interest.
Because we have been around this track many times before, I have attached to my testimony some highlights from previous discussions, including:
1) A 2012 letter to the committee from 43 Maine attorneys, including five former Maine Attorneys General, several Assistant Attorney Generals, two constitutional law professors, and lawyers with hundreds of years of experience representing public and private parties. The signatories strongly opposed the pending takings bill, LD 1810.
2) A Bangor Daily News editorial from last year urging lawmakers to oppose LD 1810. The editorial includes quotes from former state senator Peter Mills’ testimony to the committee. Mills opposed last year’s bill and he consistently spoke against similar bills while he served in the legislature.
3) Excerpts from letters sent last year to the committee from Florida land use experts who describe, in unequivocal terms, the harm that has been caused by the Bert-Harris Act. This is relevant because some have likened proposed legislation here in Maine to Florida’s Bert-Harris Act, which is one of the only takings bills enacted at the state level anywhere in the country.
4) The $1.3 million fiscal note (2012-2015) attached to last year’s LD 1810 minority report. This is relevant to consideration of LD 1450, which is essentially identical to the LD 1810 minority report. As was true with that amended bill, LD 1450 attempts to avoid a fiscal note in the current fiscal year by delaying implementation to August 2014, but then the costs start piling in. Importantly, last year’s fiscal note did not include the cost for payments to landowners of up to $400,000 per claim. So, as stated in the estimate, “costs could be increased as a result of any payments to landowners.”
5) A letter to Maine lawmakers from Bath Iron Works dating back to the 1995 takings debate. In that letter, Kevin Gildart, Assistant to the BIW President, voiced strong opposition to the fundamental concept of these takings bills, including with the following relevant excerpt:
The Minority Report ignores the fact that with property rights come responsibilities of ownership. It unfairly tips the balance between protection of property rights and community rights to a safe and healthy environment. The Constitution does not guarantee the right to use property in ways that would injure neighbors, community or future generations unless property owners are paid not to.”
These attachments are intended to remind the committee that bills like the ones before you today have been debated, and defeated for the right reasons, over and over again. LD 1039 and LD 1450 are filled with provisions that are confusing and untested. The bills would create boundless opportunities for creative lawyers to file cases against the State. Future lawmakers would face major new constraints on their ability to legislate on any issues affecting land use, and the people of Maine would suffer from the fiscal costs and policy consequences.
We can certainly discuss each of the provisions in these two bills, if that is the will of the committee. And there are plenty of experts who can help you understand the profound legal and policy consequences if either of these bills were to be enacted. But we have had those discussions and debate, repeatedly. Instead, I would hope that the committee would recognize the prior bipartisan decisions by the Maine legislature to reject legislation like LD 1039 and LD 1450.
We urge you to vote Ought Not to Pass on both of these bills. I appreciate this opportunity to testify and would be glad to answer any questions that you may have.
