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:

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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