The following legal analysis of the negative impacts of the Senate version of CARA, H.R.701 [PDF file 98k] was written by property rights expert and attorney Fred Kelly Grant, associated with Liberty Matters, American Land Foundation and Stewards of the Range.

For additional comments on CARA's assault on property rights see Property Rights in Congressional Research Service Comparison of CARA Bills and Fatal Flaws CARA (House Version).

Fatal Flaws II, CARA Exposed

Analysis of the Senate Committee passed version of the 
Conservation and Reinvestment Act.

By Fred Kelly Grant

For Stewards of the Range, Liberty Matters, and the American Land Foundation

One can easily underestimate the danger inherent in the upcoming vote on the Conservation and Reinvestment Act of 1999 in the U.S. Senate. National organizations of state, county and city governments have endorsed the Bill. National organizations of outdoor recreation users have endorsed the Bill. Even some national organizations of senior citizens, who should be concerned about the danger to the social security program, have endorsed the Bill. From all these groups come re-assurances that the Bill is a panacea for city dwellers who need soccer fields and for outdoor sportsmen who hunt and fish the rural areas.

CARA has passed the House of Representatives with a comfortable margin of victory, and appears headed for passage in the Senate. With all this support, how can the Bill be dangerous? That question is being answered by a small but determined group of western Republicans who oppose the Bill: the Bill represents a massive assault on private property and on the American concept of limited government. It allows administrative bureaucrats to evade the constitutional appropriations authority of Congress, it allows an increase in federal land holdings at a time when agencies have proven their inability to properly manage the already existing federal lands, it provides for state species protection programs which will dramatically expand the regulatory horrors of the endangered species act, and it allows government at every level to take private property without adequate protection to the property owner.

Ironically, the leaders for passage are Alaska republicans Don Young in the House and Frank Murkowski in the Senate. The Clinton-Gore administration, the democratic leadership in Congress and the radical environmentalist organizations have delightedly stepped back to allow these proclaimed supporters of limited government to carry the battle.

The rationale for this strange alliance is not readily apparent. Both Young and Murkowski are pressing for passage in direct conflict with their own party in their home state of Alaska. That party's convention voted to oppose CARA in spite of intense lobbying by Rep. Young. Ray Kreig, Chair of the Keep Private Lands in Private Hands Coalition Alaska, has written: "This bill contains so much in conflict with values shared by most Alaskans - Limited government, individual freedom, reducing the government land estate and encouragement of free enterprise - that concerned delegates at the recent state Republican Party convention overwhelmingly passed a resolution against CARA, even CARA's prime architects are Republican Rep. Don Young and Sen. Frank Murkowski."

In the past, Young has vehemently opposed expansion of federal land ownership, stating that "I don't believe government, unless it's a communist government, should own lands." The Bill provides for virtually unlimited expansion of species protection programs, even though Young, Murkowski and other Republican supporters have ardently criticized the regulatory atrocities which result from such protection programs.

Young presented the following rationale for CARA at a meeting of the Anchorage Chamber of Commerce in April: "If you want a society that's free, if you want a society that will continue to prosper, you've got to give opportunities to those people that are in those walled cities, that are faced with tremendous propaganda in the media arena. They don't have the opportunity to think out loud or to think for themselves. If you want that to occur, you've got to get people away from the large urbanized areas. That's why I introduced [CARA]."

This explanation of the Bill raises intriguing questions: Does the Congressman envision mass exodus from the cities to the land which will be purchased with CARA funds? If so, are the lands acquired with CARA funds to become residential sites rather than the open parks and recreation areas called for by many of the Bill's supporters? Or, does Rep. Young simply mean that visits by urban dwellers to open rural park areas will enhance their thinking process? Does he not think that their urban frustrations will be increased when they visit parks and open areas which are not adequately maintained or which are so overcrowded that the visitors cannot gain entrance?

Rep. Young also told a radio audience in Fairbanks on May 1, that "If you don't have availability for people to go out into the woods and have the availability of fish and game so people can go fishing and hunting, then you're going to lose the thinking people of America...This is a bigger problem than just this little bill of mine." The "problem" with the bill is "bigger" than Young, Murkowski and other supporters would have the American people believe. The "problem" is that the bill opens the door to unlimited federal control of land and to the resulting loss of private property rights.

We don't know what really drives Young and Murkowski in their quest. Clearly, it is not a motive as simple as providing fish and game and open space for the citizens holed up in the "walled cities" of the nation. Clearly, it is not as simple as believing that expanded government ownership of land is fundamental to a "free" society of "thinking people." Political scientists, historians, philosophers - even politicians - have long recognized that such is not true, that government ownership of land is not consistent with a "free" society.

Whatever their true motive, CARA threatens private property and the concept of limited government. The specific flaws in CARA have been widely discussed prior to and during the debate in the House of Representatives. The conceptual flaws have not been cured in the Senate Bill, and it is these conceptual flaws to which we turn.

 

I.    THE BILL CONVEYS TO THE EXECUTIVE ADMINISTRATION THE CONSTITUTIONAL AUTHORITY AND RESPONSIBILITY OF CONGRESS TO APPROPRIATE FUNDS FOR EXPENDITURES, THUS ERODES THE CHECK AND BALANCE FISCAL SYSTEM PROVIDED IN THE CONSTITUTION.

Article I of the United States Constitution specifically authorizes only the Congress to appropriate funds for expenditure. The Article provides that Congress "shall have Power to lay and collect Taxes...to pay the Debts and provide for the common Defence and general Welfare of the United States," and that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law..." No such authorization is stated in Article II which sets forth the authority and responsibility of the executive branch of government. The Congress appropriates funds, and the executive branch of government makes expenditures within those appropriations.

In exercising its appropriation authority, the Congress implements a check-and-balance in fiscal affairs which is critical to maintaining the separation of powers mandated by the Constitution. Discussions leading to the development of the Constitution make it evident that the founders intended that the legislative body, which included representatives elected directly by the people, would provide oversight of the executive branch through exercise of its fiscal responsibility.

The terms of Articles I and II of the Constitution do not simply set forth a "process" for government. They set forth the specifically defined parameters of the authority and responsibility of the legislative and executive branches of government which the founders believed to be crucial to a limited form of central government. Historically, the Congress has closely guarded its appropriating authority, and has carefully carried out its appropriating responsibility.

During the Clinton-Gore administration, this constitutional limitation on governmental functions was tested through an attempt by Congress to comply with William Jefferson Clinton's desire to secure authority to exercise a "line item veto" in considering appropriations bills. Such veto would enable the executive branch to pick and choose from the appropriations made by Congress. For all practical purposes, the president would be able to select the appropriations of funds to be made in any fiscal year.

Representative Helen Chenoweth-Hage (R-ID) refused to vote with the majority of her party. Even though severely chastised by the Speaker of the House, she stood firmly opposed to the line item veto on the constitutional principle of separation of powers. She urged that the United States Constitution authorized only the Congress to appropriate funds, and that the "line item veto" unconstitutionally delegated congressional authority to the president. Her embattled position was finally vindicated when the United States Supreme Court set aside the "line item veto" as unconstitutional.

Now, CARA presents a "back-door" threat to this principle. Section 2 of the Bill provides for transers of $2.6 BILLION from the Treasury to executive agencies to be spent without specific appropriations, and without fiscal year limitations. Section 2 further delegates to the Secretary of Interior the authority to expend an undetermined amount such as he finds necessary "to fund the payment in lieu of taxes program on its fully authorized level" without a specific appropriation. This language conveys to the executive the opportunity to make its own appropriations as it desires.

As pointed out by Senators Don Nickels (R-Ok) and Pete Domenici (R-N.M.), Section 2 of the Bill allocates $75 million for urban parks, $50 million for urban forestry and $350 million for wildlife conservation to be spent without any further authorization by Congress. The two senators introduced an amendment in Committee which would have required that all expenditures go through the normal (and constitutional) congressional appropriation process. Senator Nickels stated: "I support wildlife conservation, but I think it should be subject to appropriations and not turned into an entitlement. You turn it into an entitlement and Congress loses control. This bill cedes control to the administration more than any other measure I've seen." In successfully warding off the amendment, Senator Murkowski responded "I am not going to dispute your contentions." He agreed that "These are entitlements, make no mistake about it."

This is a strange admission from a Senator who professes to be fiscally conservative and in favor of limiting government. Murkowski's admission demonstrates that supporters realize they are legislating away the Article I responsibility of Congress.

Subsection (c ) of Section 2 of the Bill specifically provides that these sums "are hereby appropriated...and shall be available for obligation and expenditure without further appropriation and without fiscal year limitation." Thus, Congress conveys its constitutional appropriations authority, thus its oversight as to specific expenditures. But, perhaps more important from the standpoint of our concept of limited government, Congress conveys its constitutional responsibility for overseeing health of the national treasury. By eliminating the requirement of specific appropriation and of fiscal year use, the Congress creates permanent entitlements to the executive branch.

Some supporters say that CARA does not convey congressional authority, because Congress is in fact authorizing the transfer of funds, thus is in effect appropriating the funds. But, the position does not withstand scrutiny. Through CARA Congress is not "appropriating" funds for specific uses. Rather, it is authorizing the blanket transfer of funds from the Treasury to bureaucratic executive chieftans to expend at their will. In concept, such action is not any more consistent with the provisions of Article I than was the line item veto bill.

Obviously, on its face CARA is distinguishable from the line item veto bill. But, in concept, the Congress has crossed the separation line. As the District Judge who initially struck down the line item veto bill said:

"The separation of powers into three coordinate branches is central to the principles on which this country was founded....The declared purpose of separating and dividing the powers of government was to ‘diffuse power the better to secure liberty'....In writing about the principle of separated powers, Madison stated, "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty."...

"Pursuant to the doctrine of separated powers, certain functions are divided between the legislative and executive branches. Article I, Section 1 vests all legislative authority in Congress. Legislative power is the authority to make laws....Executive power, on the other hand, is to ‘take are that the Laws be faithfully executed." U.S. Const. Art. II, Section 3."

The Court then pointed out that within the separation of powers stated in Article I and II, Congress cannot delegate to the executive the "power to make the law." By enacting CARA, the Congress delegates to the executive the "power to make" appropriations without limit to specific duties or even to fiscal year. The "power to make" appropriations is placed with Congress by Article I.

While the Supreme Court based its line item veto decision on just the constitutional provisions relating to the "presentation" of law to the President, giving him only two alternatives, i.e., sign or veto, Mr. Justice Kennedy was compelled to write a concurring opinion to respond to the dissenting opinion which suggested that the executive and legislative branches could adjust their powers between themselves. Justice Kennedy wrote:

"Liberty is always at stake when one or more of the branches [of government] seek to transgress the separation of powers....Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty..."

It follows that if a citizen who is taxed has the measure of the tax or the decision to citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints...

By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure...

A nation cannot plunder its own treasury without putting its Constitution and its survival in peril."

Conveyance to the executive of the power to specifically appropriate money at its discretion, and without even a fiscal year limitation, violates the fundamental concept of separation of powers. While it may be convenient for the Congress to yield to the demands of national organizations who desire governmental control of land, and to mayors who cry for money to build "soccer fields", as Mr. Justice Kennedy stated:

"The Constitution's structure requires a stability which transcends the convenience of the moment."

 

II.    BLANKET AUTHORIZATION OF PERMANENT ENTITLEMENTS AND OF ACQUISITION OF MORE LAND IS INCONSISTENT WITH OUR CONCEPT OF LIMITED GOVERNMENT

Quite apart from the check-and-balance issue, the granting of permanent entitlements to the executive branch undermines our constitutionally based concept of limited government. Section 2 of the Bill provides top funding priority to CARA programs such as urban parks, wildlife conservation, historic preservations, forest legacy, and coral reef protection - a priority which places them ahead of most other fiscal needs, including national defense which is one of the few specific functions of the federal government mandated by the Constitution.

Section 9 of the Bill provides that "No funds shall be transferred under this Act if such expenditure diminishes benefit obligations of the Federal Old-Age and Survivors Insurance Trust Fund, the Federal Disability Insurance Trust Fund, the Federal Hospital Insurance Trust Fund, or the Federal Supplementary Medical Insurance Trust Fund or if there is not an on-budget surplus."

Note carefully that Section 9 contains no provision to protect the funding of national defense, veterans programs, federal law enforcement, federal judicial and correctional programs, and forest and range fire fighting programs. By granting a blanket authorization of transfer of funds from the Treasury, without fiscal year limitation, the Congress has placed the CARA programs ahead of all programs which must go through the normal, annual appropriations process. Congress will be prevented from weighing the merits of the CARA "entitlement programs" against crucial national needs in those programs, such as defense, which the central government was actually intended to operate. Through exercise of the permanent entitlements, the executive branch can actually exercise control of the amount of money available to Congress to fund critical programs outside the parameters of CARA.

There is only one limitation placed on this unfettered spending authority: Section 2 (c) subjects the spending authority "to section 2 (f)" of the Bill. Section 2 (f) provides that none of the $2.6 may be transferred from the Treasury "until the Congress has made available $450 million...for Federal land acquisition under section 5 of the Land and Water Conservation Fund Act of 1965...during such fiscal year in an Act making appropriations." Even while the Bill's supporters insist that acquisition of more land by the federal government is not their aim, they limit all other expenditures until money has been appropriated to acquire land.

A bright line in the establishment of our unique form of government has been, and still should be, the right to own and use private property. Senator Gordon Smith (R-Ore), in opposition to CARA, has said: "I don't want to enshrine the notion that public ownership [of land] makes this country great. It does not. It is private ownership that makes this country great."

As federal ownership of land expands, so does the extent of government control and regulation. Prior comments on CARA, and on executive programs expanding regulatory control, have pointed out that when the federal government owns land, it can exercise power to restrict uses on adjoining property in order to protect the federal land. This power has been authenticated by the United States Supreme Court. So, as the federal government acquires private land, it expands the potential for regulatory control over all land that adjoins the acquisition

At a time when private property rights are being choked off by unlimited government regulatory authority, CARA would authorize further expansion of such executive authority. Through the issuance of executive orders relating to the establishment of monuments and to the promulgation of "initiatives" as to water and other natural resources, this administration has already usurped legislative authority in order to restrict and shut down uses of private and federal property. CARA provides the funding to continue the expansion of executive power at the expense of the legislature. The assured impact of CARA is foreign to the concept of limited government established in our Constitution.

Supporters point to the provisions of Section 6(b) of the Act as protection against expansion of federal regulatory authority. The section provides "Nothing in this Act creates any new authority for Federal agencies to apply regulations on privately owned land." But, all assurances to the contrary notwithstanding, the language does not prevent expansion of regulatory authority. The power to regulate uses on privately owned land already exists in other laws. In the Sweethome decision, the Supreme Court made it clear that regulatory authority granted by the Endangered Species Act is applicable to privately owned land.

As pointed out in prior comments, Courts have made it clear that under authorizing statutes federal agencies may control uses on private land which adjoins federal lands. In Camfield v. United States, 167 U.S. 518, the Supreme Court confirmed the federal power to abate fences on adjoining land. In United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979), the Ninth Circuit Court of Appeals recognized the federal power to punish persons who built a campfire on non-federal land adjacent to a national recreation area. In United States v. Arbo, 691 F.2d 862 (9th Cir. 1982) the same Court ruled that a person could be charged with interfering with a federal Forest Service officer even when the interference occurred on non-federal property which was adjacent to federal property. In Free Enterprise Canoe Renter Association v. Watt, 549 F. Supp. 252 (E.D. Mo. 1982), the federal court held that the National Park Service could prohibit the use of state roads for canoe pickups within a federal Scenic Riverway.

So, the provisions of Section 6(b) change nothing in current law, and extend no protection to private property rights not already existent under the Constitution. With or without the clause, the federal agencies can impact private property which adjoins federal land. As federal land holdings expand, thus expands the mass of adjoining private land which can be adversely impacted by federal regulations.

As the executive agencies acquire more land, they also expand the need for additional appropriations by Congress for land management, maintenance and preventive measures such as fire fighting. It is now estimated that the cost of fighting this summer's massive forest fires in the west has exceeded $1.5 BILLION. As federal land sites expand, so will the cost of maintaining and protecting them. Congress will have no choice but to appropriate the funds necessary for such actions. So, in yet another way the executive branch will gain control over the appropriation process. The more land they acquire, the more they can control the amount of money to be appropriated for land maintenance.

If the Congress were acting responsibly, it would take whatever action necessary to restrict and limit federal ownership and management of land. This summer alone we have seen the results of federal management: Los Alamos burned to the ground and the Congress must appropriate enough money to pay the residents for their losses (caused by apparent negligence on the part of the Park Service); the Governor of New Mexico and the Chief Forester of New Mexico both have testified to a Congressional committee that they were never even advised by the federal Park Service that it intended to start a "controlled burn" in far less than desirable climate conditions; the Governors of at least two western states have asked that federal disaster areas be declared so that citizens can be aided in attempting to rehabilitate themselves from the ravages of forest fires; the Secretary of Interior has admitted that perhaps a different policy toward thinning the forests might be necessary (in every forest conference held during this administration scientists have urged that the restrictions on logging were increasing the fuel load in our forests---thus increasing the threat of disastrous fires, a threat which culminated in the burning of the west.).

We know that federal lands are not managed as effectively as state and privately owned lands. Senator Conrad Burns (R-MT) has opposed CARA, stating "Under the surface of everything, hidden on the dark side of government, is that government ownership of land has not been all that successful." Senator Larry Craig (R-ID) said "The most vibrantly alive land today as it relates to young and growing and vibrant trees and wild habitat are state and private forests."

Yet, CARA would allow the executive agencies to exercise almost unlimited authority to acquire even more land to mismanage.

    

III.    CARA PROVIDES NO PROTECTION OF PRIVATE PROPERTY FROM THE ADVERSE IMPACT OF EXPANDING FEDERAL OWNERSHIP

Supporters of CARA contend that the bill is not designed to promote land acquisition through involuntary condemnation by government. Apparently, their strategy is to keep repeating this untruth until the people are fooled into believing it. But, members of private property support groups who have actually read the bill's language know better.

In prior comments upon CARA, it has been pointed out that the Bill does in fact authorize the government to condemn land in order to acquire it. Supporters of the Bill who would have the public believe that a real attempt has been made to protect private property rights, pointed out that the acquisition had to be from a "willing seller" or by specific approval of Congress. Prior comments, and members of the House, pointed out that this alternative of congressional approval made it clear that the Bill provided for condemnation of land when the owner was not "willing" to sell.

In the Senate version of the Bill, there is even less protection than in the House Bill. The Senate version has removed the alternative of specific approval by Congress. Section 207 provides that federal acquisitions shall be made only when "the owner of the property is willing to sell", or "the acquisition is authorized by law and is conducted in accordance therewith." This language strays from the House Bill which required the existence of a "willing seller" unless "acquisition of that property is specifically approved by an Act of Congress." At least under the House Bill, the attention of Congress would have to be drawn to a specific acquisition and the conditions surrounding it.

But the Senate language does not require specific attention by Congress. It allows acquisition when "authorized by law." In fact, this is no limitation at all, other than to say that acquisitions must be lawful. An agency cannot condemn land in any case unless authorized to do so by the law governing its operation. The Constitution allows condemnation when necessary to serve a public purpose. So, if an agency can satisfy the Constitutional provision of "public purpose" within the parameters of its authorizing statute, it can satisfy Section 207. Thus, the Bill itself offers no protection of private property rights and does in fact authorize condemnation against the will of the seller.

Supporters insist that the Congress will be aware of specific acquisitions because Section 207 (b) provides that no expenditures for acquisition shall be made unless "approved in an Act making appropriations." Anyone who has studied the legislative process that attends development of "omnibus" appropriations bills knows that this language does nothing to assure that the specific attention of Congress will be drawn to acquisitions during the rush to enact appropriations bills at the end of each session.

But, even with this "appropriations act" language, it is still clear that the intent stated in the Bill is that the executive agencies can condemn land when there is not a "willing seller." One wonders how long the supporters of the Bill will continue to deny that condemnations are contemplated, and that acquisitions will be only from "willing sellers" when the specific language of the Bill is to the contrary.

 

IV.    CARA EXPANDS THE THREAT OF SPECIES PROTECTION PROGRAMS TO PRIVATE PROPERTY RIGHTS BY ALLOWING EXPANSION OF FEDERAL CONTROL THROUGH STATE PLANS.

Reams of articles have documented the regulatory nightmares which have plagued American citizens through federal implementation of the Endangered Species Act. Criminal charges have been filed; homes have been destroyed; use of land has been lost; land has been devalued; retirement investments have been ruined; livelihoods have been abandoned - all as a result of arbitrary regulatory actions by federal agencies.

For at least a decade, members of Congress have called for drastic changes to the Endangered Species Act, ranging from failure to reauthorize, to repeal, to amendments which would protect private property rights from regulatory takings by requiring payment for loss of use of property. These calls for change have come largely from Republican members of Congress - and, ironically, from some of the most ardent supporters of CARA.

Why is this turn-around ironic? Because, under CARA the federal agencies can offer grants to the states to establish species protection programs far broader and more inclusive than any program possible under the ESA. The Wildlife Conservation and Restoration Program, included in Title III of CARA, provides funding for establishment of state "conservation" programs. These programs will include:

"the use of methods and procedures necessary or desirable to sustain healthy populations of wildlife, including all activities associated with scientific resources management such as research, census, monitoring of populations, acquisition, improvement and management of habitat, live trapping and transplantation, wildlife damage management, and periodic or total protection of a species or population..."

Notice that there is no requirement that the "species or population" be threatened or endangered; there is no requirement that there even be evidence of declining numbers of the species or declining sites of habitat. Funds under Title III may be given to states to protect any species (including those sought by hunters and fishermen), and to acquire land and habitat by condemnation for any species, whether threatened or not.

The result is the potential to fund the establishment of broader species protection in 50 states than that provided by the Endangered Species Act. Some may say that this is preferable to the heavy handed implementation of the ESA which has been the trademark of the Fish and Wildlife Service. But, such approach is misleading for several reasons.

First, the establishment of state species conservation programs will not replace the federal implementation of the ESA. The existence of state programs will enhance the regulatory possibilities for the federal agencies. They can piggy-back protection of species under the ESA to the state programs. Then the property owner will be faced with dual enforcement by state and federal government agencies.

Second, in some states the high-handed, autocratic actions of state agencies may even exceed the levels of arbitrariness reached by federal agents:

Those who know of the Richard and Nancy Delene case in Michigan will realize that no federal agency could be more vindictive, more arbitary, more committed to destruction of private property rights, or less scientifically informed than the Michigan Department of Natural Resources which implements wetlands protection. The Delenes have been deprived of their private property, subjected to a staggering fine of $1.5 MILLION, and forced by existence of a bench warrat to stay outside their home state - all without ever having a chance to try the merits of their case in court.

In Idaho, the Fish and Game Department is pushing for adoption of Guidelines for Sage Grouse habitat which will be more restrictive to natural resource uses than any rule contemplated by federal agencies. Those Guidelines, if adopted, could end all grazing in any potential Sage Grouse habitat in the state----even though there is no scientific evidence to support the restrictive guidelines or to support the theory that sage grouse numbers have decreased in Idaho and have been harmed by livestock grazing.

In Oregon, the Governor has pushed a water protection plan that can be more destructive to family farmers and ranchers than any plan or regulation issued by a federal agency.

Third, in order to use funds provided by the Secretary of Interior the states must submit to the Secretary for approval a "Wildlife and Restoration Program" which contains a strategy for development and implementation of projects that "expand and support existing wildlife programs to meet the needs of a diverse array of wildlife species..." Again, there is no requirement that any of the "diverse array" of species be threatened, endangered, or even declining in number. The Secretary must approve the state's program before funding can be allowed. This gives the Secretary the opportunity to establish "guidelines" for approval which call for the strictest possible regulations of land use in and near habitat sites. It allows federal intervention to make each of the state's programs even more restrictive than a federal program can be under the ESA.

Fourth, the states will be allowed to use funds provided by the Secretary of Interior to implement its wildlife program through grants and contracts with federal agencies and with non-government "wildlife conservation organizations". The federal funders, who must approve the state program, will be in the position to "suggest" that the state contract with the federal enforcement agency to implement its program or that the state contract with an organization such as the National Wildlife Federation, the Sierra Club, or the Wilderness Society to implement its program. Thus, the program from which will come strategies and management actions relating to species habitat, may be put directly into federal or non-governmental radical environmentalist hands. The fate of all natural resource uses will be sealed.

For at least a decade, the radical environmentalist organizations have fought to cut off access to wilderness areas and to rivers and waterways which are favored by recreational users of all types, but particularly hunters and fishermen. Within the last two years, these efforts have been joined by the Forest Service and Bureau of Land Management. Several federal plans are pending which will severely curtail access for even the sportsmen. Those national sporting organizations which have supported CARA will be greatly shocked when some of the state wildlife programs call for closing off access in order to "conserve habitat." CARA allows such restrictions on any land acquired by the state for its wildlife programs, and on any land designated as habitat under such programs.

 

IV.    CARA HEADS FOR SENATE VOTE

The Senate Bill has cured none of the conceptual flaws contained in the House Bill. The Senate Bill offers no more private property protection than did the House Bill. If anything, the Senate Bill has made it more apparent than the House Bill that land acquisitions will be by governmental condemnation. The Senate Bill will result in reductions of privately owned land throughout the nation. It will result in legislative delegation to executive agencies which will permit expansion of executive land-holdings and regulatory authority over that property which remains in private ownership. It will allow federal intervention in state programs in order to broaden and expand control over land use through the guise of species protection programs.

As CARA moves toward a Senate vote, only two strategies still remain for prevention of passage: (1) a dramatic, last-ditch effort by grass-roots Americans to persuade their Senators that free government should not facilitate the taking of private property, and (2) a parliamentary slow-down of Senate business by the small group of Senators who are, so far, steadfastly opposing increased federal ownership of land. Perhaps the grass-roots Americans who oppose CARA can convince this small group of Senators to "stay the course" in America's behalf.

Liberty Matters, American Land Foundation and Stewards of the Range are national property rights organizations whose members would be directly affected by the Conservation and Reinvestment Act of 1999.

Reprint permission is granted in whole or in part with attribution to Liberty Matters, Stewards of the Range, and American Land Foundation.

Fred Kelly Grant is a native of Nampa, Idaho. He attained his B.A. from the College of Idaho in 1958, majoring in History; with specialization in Constitutional History and Law. He then attended the University of Chicago School of Law. He served as Law Clerk to Chief Judge Brune, in the Maryland Court of Appeals.

He first worked as an associate at Lord, Bissell, and Brook; a Chicago law firm representing Lloyd's of London. He continued to practice law in the District of Maryland, where he was an Assistant United States Attorney. He later became Assistant State Attorney of Baltimore, and then Chief of the Organized Crime Unit, State's Attorney of Baltimore. He spent his remaining time in Baltimore involved in criminal defense.

Grant has since returned to Idaho where he is an expert on land use issues. He is the owner of Fred Kelly Grant Ltd., providing consulting services in personnel and land use, and legal research. He is also consultant to Owyhee County Land Use Planning Committee and to the Board of County Commissioners regarding Land Use Planning for the federally managed lands in the county. Grant has also been a consultant to Stewards of the Range since 1997.

Contacts:

Stewards of the Range
PO Box 1189, Boise, ID 83702
(208) 336-5922
fax (208) 336-7054
www.stewardsoftherange.org

American Land Foundation
700 West Lake
Taylor, TX 76574
(512) 708-8083
fax (512) 708-8298
Liberty Matters

P.O. Box 1207
Taylor, TX 76574
1-800-847-0227
fax (518) 725-8239
www.libertymatters.org

 

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