Property Rights in Congressional Research Service Comparison of CARA Bills

by Erich Veyhl July 28, 2000

The legislative analysts who prepared the CSR report comparing the various CARA bills focused on the legal text within the provisions of the bills. They acknowledge the controversy over the serious problem of protecting private property rights but do not explore the political implications of the provisions in the bill.

For example, they report that some of the bills "state that property rights will be respected, that property may not be taken without compensation, and that land uses on private land may not be regulated by federal agencies prior to acquisition unless authorized by Congress."

The political realities corresponding to these provisions are:

• The general phrase "Respect for property rights" contains no specifics and legally only means "following the law", which is supposed to be done anyway; it does does not ensure that laws themselves, or their political applications, properly codify and protect property rights. "Respect for property rights" therefore implies no more than that the greens can do anything they have the authority to do under whatever laws taking or controling property that they can get passed, and under any legal interpretation they invoke that ultimately survives a court decision -- if you can afford to take them to court. In other words, a vague provision requiring "respect for property rights" literally means in practice no more than they can do whatever they get the power to do. Property rights has no other meaning to them.
  
  
• The provision that "property may not be taken without compensation" is a restatement of the government's condemnation powers under eminent domain -- Taking your property with "compensation" means that you are being condemned.
  
  The provision adds nothing to the Fifth Amendment and is in fact a weaker statement of it. The Fifth Amendment requires additionally that the taking be for the so-called "public good". CARA presumes that any property taken under its provisions are automatically to be regarded as satisfying that condition, regardless of the political reality of the influence of special interest groups setting the government targets and priorities.
  
  This provision, therefore, is not a protection of the right to keep your property, but rather a reaffirmation that it can be taken using CARA's massive increase in acquisition funding (which is of course intended to increase government acquisition of private property), and that you have no legal recourse to stop it.
  
  
• The provision that private property may not be subjected to Federal regulation without Congressional authority serves only to reaffirm existing law, and to clarify that CARA, which is a funding bill, does not itself directly add land use regulations on targeted property to those already established or to be established later by Congress, Federal agencies, or state-empowered agencies. Onerous regulations have historically been widely used to pressure property owners to sell. By increasing acquisition funding and funding to NGO's and state-empowered regulatory agencies pursuing green goals, CARA encourages this.
  
  Moreover, CARA does nothing to stop the increasingly widespread practice of inverse condemnations in which government takes control of land without compensation under various regulatory authorities. Environmentalists publicly refuse to acknowledge this concept of regulatory takings and steadfastly resist all attempts to compensate landowners who lose control of their property in this fashion. The environmentalists would therefore have no incentive to use CARA funds to compensate property owners for new or past regulatory takings, and would instead use CARA money for new acquisitions where they lack the authority to conveniently take property through regulations.

As a further example of political reality not captured in the CRS legal analysis, the report states,

"Current law does not prohibit use of federal LWCF funds in condemnation actions, though, reportedly, this practice is very rare."

Unspecified "reports" from unamed sources to the contrary, historically there have been extensive court condemnations, declaration of takings, and threats of condemnation against private property owners for acquisitions funded by LWCF for 35 years. A crucial political reality in government condemnation statistics, however, is that most property owners give in to the threat of condemnation because there is ordinarily no legal defense against it. Property owners therefore usually try to avoid unproductive court procedures and sell under the threat alone. The government regards such sellers as "willing sellers" and does not include them in condemnation statistics, despite its threat to use condemnation if they don't sell.

Several more specific provisions concerning property acquisition procedures scattered among the different bills are essentially paper work and reporting requirements, some of which are already in Federal regulations. They are typically interpreted very loosely by the Federal land agencies and typically offer no practical protection to property owners beyond perhaps sometimes slowing them down.

For example, requirements to justify acquisition "priorities" are typically fullfilled through official but arbitrary assertions reaffirming prior political decisions. One example is the requirement to justify acquisition priorities. In practice the agencies simply take what they or environmentalists want, and arbitrarily assert that these targets are "environmental" priorities, as if environmentalist desires are an a priori justification. If they take your property it does you no good to pay an attorney to take them to court over such administrative procedures that in fact have no affect on the final outcome.

A detailed legal analysis of the lack of protection of private property rights in CARA is FATAL FLAWS of CARA, An analysis of the Conservation and Reinvestment Act of 1999 as passed by the House Resources Committee by attorney Fred Kelly Grant. (The version of CARA approved by the Senate Energy Committee is worse than the House version.)

The Grant analysis shows how misleading headings in the CARA bill give the appearance of property rights protections which in fact never appear in the actual language of the bill. This suggests that CARA was deliberately written to give a false impression to the casual reader who does not understand how government acquisitions work in practice.


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