The following legal analysis of the claimed protections of property rights in CARA 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 the Congressional Research Service enumeration of CARA provisions claiming to protect property rights see Property Rights in Congressional Research Service Comparison of CARA Bills.
FATAL FLAWS of CARA
An analysis of the Conservation and Reinvestment Act of 1999 as passed by the House Resources Committee.
By Fred Kelly Grant
Much has been said and written about the benefits of and the flaws in H.R. 701 (CARA) [PDF file 191k]. Its supporters have defended the Bill against advocates of private property rights by claiming that the Bill protects property rights while extending funding to federal, state and local agencies to preserve the great openness remaining in our nation.
The supporters have utilized summaries of the Bill and its supposed benefits, and asked for support by the grassroots on faith that the supporter's claims are factual. But, if one reads the provisions of the Bill---the provisions which will be binding federal law if the Bill passes---the fallacies of the supporting claims become evident.
Because so much has been written, and because of the imminence of the vote on the Bill, the attempt here is to relate the actual language of the Bill as to limited specific issues regarding private property rights, the potential spread of federal control over land, and the impact on other programs of importance to the grassroots. When the actual language and the potential impact of the Bill is studied, it becomes apparent that H.R. 701 is the greatest threat to private property rights ever conceived in this country.
I. THE CLAIM THAT THE BILL ADEQUATELY PROTECTS PRIVATE PROPERTY IS MISLEADING AT BEST.
Supporters of the Bill have claimed far and wide that there are provisions in this Bill which protect private property rights from "takings" by the government. They have claimed that purchases would be made only from "willing sellers" and that there would be no authority extended to government to "condemn" private property for purposes under this act. They have also claimed that mere use of funds appropriated under the Bill would not extend the regulatory authority of federal agencies. These claims seem to have placated many members of Congress who are otherwise staunch supporters of private property rights.
But the claims are simply not true. They are directly contradicted by the specific provisions within the Bill.
A. The Claim that the Bill does not authorize condemnation is incorrect. The Bill does not protect against condemnation, thus does authorize, condemnation.
Section 11 of the Bill is entitled "Protection of Private Property Rights". Subsection (a) is entitled "Savings Clause" and it is this clause which many supporters refer to as the clause which protects private property from condemnation. That claim does not withstand even cursory review.
The subsection states that "Nothing in the Act shall authorize that private property be taken for public use, without just compensation as provided by the Fifth and Fourteenth amendments to the United States Constitution." If the subsection ended with the first clause, the supporters could justifiably defend their claim that no condemnations of land were authorized. If the subsection said only that there would be no taking of private property, then there would be no authority for condemnation.
But, the subsection does in fact contain the second clause "without just compensation". The combination of the two clauses precisely defines what a condemnation is in fact. The term "condemnation" is defined as the "process of taking private property for public use through the power of eminent domain. ‘Just compensation' must be paid to owner for taking of such." Black's Law Dictionary, Sixth Edition.
The language of the subsection provides a text-book illustration of what condemnation is all about. In spite of appearing in a section called "Protection of Private Property Rights," the subsection provides no protection other than that already provided by the Fifth and Fourteenth Amendments. It certainly does not protect against condemnation.
No one can claim, in good faith, that this Bill does not authorize condemnation of property in view of the language of Section 11 (a).
B. The Bill does not prevent federal agencies from extending the impact of their regulations beyond land actually acquired.
Subsection (b) of Section 11 purporting to protect private property rights provides that "Federal agencies, using funds appropriated under this Act, may not apply any regulation on any lands until the lands or water, or an interest therein, is acquired, unless authorized to do so by another Act of Congress." What an intriguing attempt to assure a scanner of the Bill that federal regulation cannot be extended to private property. But, the last clause of the subsection makes one aware of the deceit.
Most of the Acts of Congress extending management of federal lands to the federal agencies contain language which authorizes the agency management to take actions necessary to protect the federal lands. So, Section 11(b) does not protect against the exercise of such protective authority. Courts have made it clear that under protective provisions of such acts of Congress, the federal agencies have the power to control land use of private property which adjoins federal lands. In Camfield v. United States, 167 U.S. 518, the United States Supreme Court confirmed the power of the federal government 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 power of the federal government 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 interference with a federal Forest Service officer even when the interfering action took place 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.
Thus, the last clause of Section 11(b) makes it clear that this section changes nothing in current law, and extends no protection to private property rights which do not already exist under the Constitution. With or without the clause, the federal agencies can impact any private property adjoining federal lands by extension of their regulations. With or without the clause, the federal agencies can extend their regulatory authority to hunters, campers and fishermen even when they are on private or state property.
Neither does Section 11(b) protect against the expansion of regulations regarding protection of species. We have already seen that the courts have allowed the agencies to extend their regulatory protections of species to private property. Now, under this Bill there will be money authorized to states to extend species protection and to enter into cooperative management agreements with the federal agencies in order to implement the species protection plans which are developed. This provides a means of expanding federal regulations, established pursuant to the Endangered Species Act, through such cooperative management plans even though the federal government has acquired no interest in the land covered by the plans.
So, the "protection of private property rights" set forth in Section 11 offers no protection against condemnation, no protection against expansion of federal regulations, no protection which does not already exist under the United States Constitution.
C. The claim that land will be acquired only from "willing sellers" is inconsistent with the specific terms of the Bill.
The main sponsor of the Bill in the House has defended the Bill by claiming that all land purchases will be only from "willing sellers." He thus chides private property advocates for opposing the bill, saying that such advocates should support the opportunity for "willing sellers" to dispose of their land.
Apparently the claim is based upon Section 205 which contains the "Willing Seller Requirement." The very title would lead one to believe that in fact no acquisition could be made other than from a "willing seller." But, the language of the section belies the title.
The first two clauses of the section would seem to be consistent with the title: "The Federal portion may not be used to acquire any property unless (A) the owner of the property concurs in the acquisition." Accept for a moment that this statement defines a "willing seller." It really does not, but for our initial purpose accept that it does. One would read this as fulfilling the "Willing Seller Requirement." But, the next clause of the Section states: "or (B) acquisition of that property is specifically approved by an Act of Congress." So much for the "requirement" that there be a "willing seller." The Section is written in the alternative: federal acquisitions must be from a concurring owner OR under approval by an Act of Congress. So, if Congress approves an acquisition, it matters not whether the owner concurs.
In touting this Bill why would anyone contend that all acquisitions had to be made from a "willing seller" when the language of the Bill is to the contrary. There is only one logical explanation: the claim is made to try to thwart the impact of the opposition from private property advocates by misleading those who have not studied the actual terms of the Bill. Rep. Young made the statement that "Those who oppose this bill are going to get run over." But, those who study the actual language of this Bill and compare it to Rep. Young's claims will clearly see that the claims are bogus.
Now that we have seen that the federal acquisition can be made from an unwilling seller if Congress approves the sale, let us consider what that means. Some might say, "well, if Congress does specifically consider and approve an acquisition it will happen only after the people have received notice and an opportunity to express their opinions on the acquisition to their representatives." Not necessarily. How many projects were approved in the infamously complex appropriations bill for Fiscal 1999 without any specific advance notice? Has anyone in the public ever seen the thousands of pages of that appropriations bill put together? How many projects of various types have been approved by Congress as an amendment to a bill completely unrelated to the project? One that comes to mind is the Quincy Library Group bill related to central and northern California which was enacted as an amendment to an Indian land lease authorization relating to lands in the Dakotas. More recently, $2 million have reportedly been included in the Interior Department appropriations bill for the purchase of additional scenic easements in the Sawtooth Recreation Area in central Idaho. The projects have not been identified in that appropriation, but by allocating the money, Congress will have approved acquisition of the easements.
So, the provisions of Section 205 allow the agencies to push through acquisitions without the necessity of securing concurrence from the owner of the land. Why then title the Section "Willing Seller Requirement," and why claim that purchases will be made only from willing sellers, unless the purpose is to deceive those who might worry about private property rights being lost through forced purchases by the government.
One other consideration should be taken into account. The Section is based on the premise that an owner who "concurs" in the acquisition is "willing." In a condemnation case, where "fair market value" must be determined as a standard for "just compensation", the question is not whether the seller "concurs", but whether under all the circumstances it can be found that the seller "wants" to sell. A land appraiser will tell you that market value is based upon the amount which would exchange between a knowledgeable and willing seller, who is under no compulsion to sell (no compulsion of any kind) and a willing buyer under no compulsion to buy. In finding whether a seller is "willing", the trier of fact must determine whether the seller was under compulsion of any kind and whether he wanted to sell, not merely whether he concurred with the sale.
So, the Bill does not really define a "willing seller" as that term is traditionally used in the real estate market and in courts which determine condemnation cases. It calls any seller who says "ok" to the acquisition a "willing" seller, even if he says "ok" after being told that all the land adjoining his is going to be acquired in a manner which will severely restrict the use and value of his land. Those who have studied the growth of conservation and scenic easements in this country are familiar with the scenario in which an owner sells in desperation because of the threats of regulatory restrictions which will otherwise be placed on his property.
In short, the Bill does not require that all acquisitions by the federal government be from a "willing seller."
D. Protections, such as they are, do not specifically extend to state government acquisitions.
The "willing seller" restriction, such as it is, is applicable only to federal acquisitions. This means that an acquisition made by a state or local government which receives funds is not bound by even the color of an attempt to restrict condemnation. The supporters may say that Congress has no such right. Wrong. The Bill could restrict the funding of states and local governments to only those instances in which the state or local government agreed that land acquisitions would be made only from a true "willing seller" and that condemnation would not be used.
The same is true for the language that seems to attempt to restrict the federal regulatory authority. Funding to states and local governments could be limited to those cases in which states and local governments would agree that their regulations would note be extended to any lands until they were actually acquired from a true "willing seller."
Given the provisions that call for joint and cooperative management plans, it would make sense to extend these protections of private property to the state and local government use of funds, IF the Bill really were intended to protect private property rights.
E. Water rights are not adequately protected
Section 210 is entitled "Water Rights," but it does not contain the language that would most assuredly protect vested water rights: "nothing in this Act shall effect any existing water right." Throughout history, Congress has used language to that effect when it intended to protect already existing and vested water rights. Not so in this Bill.
The language of 210 rather talks in terms of state and federal relationships regarding water. Nothing in the section pertains to protecting existing private water rights.
Neither is there specific language which states a Congressional intent that there be no implication of reservation of water for any purpose stated in the Act. It would be very simple to insert specific language that there was no reservation intended: "Nothing in this Act is intended to reserve water, or impliedly reserve water, for use of any projects or acquisitions funded by this Act." It would be simple, if it really were the intent of the sponsors to protect private property rights.
II. THIS BILL THREATENS THE ECONOMIC STABILITY OF COUNTY GOVERNMENTS, AND THREATENS TO CUT VITAL LOCAL SERVICES FOR THE TAXPAYERS.
In most states, the taxpayers are most directly served by local government. County governments furnish the seats of justice in the forms of lower and upper level trial courts, law enforcement and detention facilities, official recording of documents, road and highway maintenance, and the fiscal services necessary to collect and disburse taxes for various local taxing districts such as school districts, highway districts, ambulance districts, fire districts, library districts, and agricultural fair districts. The taxpayers are in fact served by county functions that are funded by ad valorem (property) taxes which are based on assessed valuation of private property within the county.
As the amount of private property is decreased in the county, the tax base of the county is decreased. The acquisitions of private property, which will be possible under the Bill, threaten the very existence of many county governments, particularly in rural areas. When private property is purchased by a governmental entity, there will be no revenue payable to the county which will replace the loss of tax base.
This Bill will accommodate land purchases that will dwarf the purchases made by the Forest Service in the Sawtooth Recreation Area in central Idaho. Yet, those purchases alone have devastated the tax base of Custer County in Idaho.
The enabling statute which created the Sawtooth National Recreation Area stated the clear intent of Congress that the federal agency should purchase, in fee simple, no more than 5% of the private land in the proposed Recreation Area. In spite of that mandate, the Forest Service has purchased, in fee simple, 17% of the private land in the Area and are still buying. In fact, another $2million have been included in the appropriation for next year for further purchases in the Area. This massive removal of private land from the tax base of slightly populated Custer County endangers continuation of county services.
In addition to the absolute removal of private property from the tax rolls, the purchase of scenic easements by the government further depletes the revenue of the County. The impact of the scenic easements is to prevent all development, even when the development would not detract at all from the visibility of the Scenic Area (which is the stated purpose for the easement purchases). As a result, the tax base for all private properties covered by the scenic easements is permanently frozen at a much lower level than the tax base would be on developed property. This means that county revenue is cut. So is revenue for the school districts and all other local taxing and service districts. The assessor and a former assessor of the County provided an example: The owner of an 11.5 acre parcel sold a scenic easement to the Forest Service for $306,000. Neither the county nor any taxing district received any revenue benefit from that sale. The sale prevented development of three residences that could have been constructed without effecting in any way visibility of the Scenic Area. The former assessor estimates that the three lots and buildings would have an assessed value of nearly $2 million. Based on that valuation, the school district alone would have received $14,571 each year in tax revenue from those lots. Without that development, the owner who sold the easement to the Forest Service pays only $5,296 in total property tax revenue, with only a portion of that going to the school district.
The adverse impact of the federal government's purchase of private land and of scenic easements, which decrease the valuation and prospective valuation of property, is obvious from this example. Custer County Idaho's experience is critical to that county, but it is miniscule compared to the adverse impact on counties throughout the nation which will result from the massive land acquisitions to be funded by H.R. 701. Federal agencies will push their agenda to further decrease private property that is more difficult for them to control. In the Sawtooth National Recreation Area, the Forest Service did not deem itself bound by Congressional limitations on the amount of private property which could be purchased. Congress said, "buy no more than 5% of the private land." The Forest Service has already bought 17% of the private land and still spending. So, even the slight limitations placed on the agencies in H.R. 701 will be meaningless to the agencies. Armed with the almost unlimited discretion given to the Secretary of Interior throughout this Bill, the agencies will be in a position to make the biggest grab of private land in history.
III. THE BILL PAVES THE WAY FOR CREATION OF STATE PROTECTION OF SPECIES EVEN BROADER THAN THE FEDERAL ENDANGERED SPECIES ACT.
Through the Wildlife Conservation and Restoration Program, the Bill provides for state programs of species protection that is far broader than the protection which has lead to destruction of private property rights under the Endangered Species Act (ESA). Section 302 (d) defines the "conservation" use to which funding may be put by the states as including "use of means and procedures necessary or desirable to sustain healthy populations of wildlife including all activities associated with scientific resources management such as....acquisition, improvement and management of habitat...and periodic or total protection of a species or population."
This language is all-inclusive. It does not pertain merely to endangered or threatened species as now recognized by the ESA. It applies to all "wildlife" which would include even non-sport (hunting and fishing) species. The breadth of this provision is awesome. It extends to the states the funding to create species bills that the federal government can't reach. That will allow the federal government, through cooperative management plans called for by the Bill, to extend its regulations of use of land to any species related to any state program funded under this Bill.
The same section provides that such state programs must be "approved by the Secretary," so the federal government can insist on the broadest possible restrictions on species by the state in order to gain funding. Section 304 provides that in order to gain the Secretary's approval, the state must submit a "comprehensive plan" which provides that the state Fish and Game Department will have overall responsibility for the program. By this provision, the federal government can dictate to the state seeking funds as to which department of government must run the program. The comprehensive plan must also provide that this agency will develop and implement wildlife conservation programs, giving "appropriate consideration to all wildlife."
This Bill has been touted by its supporters as a boon for hunters and fishermen. Various sporting organizations have supported the Bill in reliance upon these claims. But, if they read the Bill they will see how the federal government can use the funding to gain control over the state species protection programs. Once that happens, is there anyone on the scene today who does not see that restriction of access is next on the agenda. The federal agencies have launched a massive effort to restrict access during the past 18 months. This Bill permits the expansion of that effort to any land acquired by the state for its wildlife programs.
Those who have fought re-authorization of the Endangered Species Act, those who have rallied against the abuses of private property and the closing of access under the Endangered Species Act, should take note that under this Bill the Congress will be setting up the federal agencies to take a position as commissar of a vast extension of authority and control which can restrict private property rights and access under the guise of protection of a whole new body of species which it cannot touch under the ESA.
IV. THE BILL AUTHORIZES FUNDING TO NON-GOVERNMENT ORGANIZATIONS OF THE TYPE WHICH HAVE FOUGHT PRIVATE PROPERTY RIGHTS AND OPEN ACCESS.
Section 704 of the Bill authorizes the funding of conservation easement purchases by non-government organizations that qualify as a non-profit, tax exempt organization. This allows the Secretary to fund project purchases by the extremist environmentalist organizations which have fought to overcome private property rights and to deny access to federal lands through the past two decades.
These same groups have filed lawsuit after lawsuit against the government, costing advocates of private property rights millions of dollars in attorneys fees to defend property rights and to seek and defend open access to federal lands. Now, the federal government will fund their efforts. They can receive funds to use in purchasing conservation easements that will extend the domain which they can control. Then, they will be free to use their own revenue to continue to battle private property rights and open access through their debilitating litigation strategy. With the federal funding, they can acquire control over even more land, which they can close down to multiple uses including hunting, fishing and motorized recreation uses.
Meanwhile, the taxpayers who have to defend their rights will be paying the costs of the extremists through tax dollars. It is remarkable to see that members of the Congress who profess to be advocates of private property would actually consider such funding of organizations dedicated to the destruction of private property rights.
V. THE EXPENDITURES TO IMPLEMENT THIS BILL WILL ATTACK THE ‘SURPLUS' AND THREATEN IMPORTANT PROGRAMS
Some conservative members of the Congress have warned that the Bill will deplete the "surplus" which is critical to various trust type programs. One of those, which has not been mentioned widely, is social security. The chief sponsor has proclaimed widely that he is a friend of the senior citizens and he managed to get the support of a national organization representing seniors. But one wonders what will happen to those members of Congress who support this Bill, when the grassroots seniors realize that this Bill will in fact deplete the surplus. That means that all programs reliant on that surplus must compete for a smaller amount of money. Social security will be pitted against military appropriations and other appropriations critical to our nation's safety and health.
Sooner or later the seniors in the country will realize that the Bill provides a threat to the funds available to support long-time health of the social security program. Then, we will see the impact that can be made by the grassroots.
VI. MASSIVE DECREASES IN PRIVATE PROPERTY ENDANGER THE PHILOSOPHICAL BASIS UPON WHICH THIS NATION WAS FOUNDED.
It is not necessary, surely, to set forth the factors that evidence the importance of private property ownership to the Founders of this nation and to the philosophy of republican government that they documented in the Constitution. Neither should it be necessary to set forth the factors which evidence the importance to our enemies of destroying the independence of our citizens which results from ownership of property. In the Communist Manifesto, Marx warned the non-communist world: "In one word you reproach us with intending to do away with your property. Precisely so; that is just what we intend."
The federal government currently owns at least 30% of all land in the United States. In the western states, the government owns more than two-thirds of the land. Now, H.R. 701 authorizes vast increases in this ownership, and with each increase we lose more private property. We lose more of the resource that has always afforded us the basis for independence.
Last year the Congress identified $15 billion needed for backlogged maintenance of the federally owned lands. This government cannot even afford to maintain the land already owned. Why does the government need more land---when it cannot maintain and care for that already owned? There is only one logical answer: the more land owned by the federal government, or by state governments entangled through cooperative management agreements with the federal government, the more power the federal government has over local land use decisions and over the operation of local governments themselves. Marx would be pleased.
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.
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.
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