CONSERVATION REPORT, January 92 Storm Petrel1

Property Rights vs Biodiversity – Part II2

"Economic development": mostly about $ for local real estate speculators. Why social, human, or civil claims lack parity with "property rights"3


America's peculiar sensitivity to property rights impedes the development of mechanisms to protect ecological systems and biodiversity. We have a hard time confronting the outmoded notion that "A man can do whatever he wants with his own property". However, since we are very sympathetic to appeals for "mercy", a unique American solution has been devised. It more or less allows people to do whatever they want with their own property, but protects species on an individual basis.

Thus, situations arise where the only impediment to clearcutting trees from horizon to horizon is the existence of some obscure bird nesting in one of the trees. Stripminers may find that the only impediment to making a mile square hole in the ground is a rare small flower growing somewhere in the vicinity. Basic protections for the environment operate indirectly, and focus on the species living on the land rather than the land itself. Obviously, we need to impose national and international land use restrictions to forbid private property holders from abusing the land that is in their care. But, since it is considered too radical to state the problem in these terms, and since some of the only laws with real teeth are those, which protect specific endangered species, ecosystem struggles are often reduced to fights over specific animals or plants. There is often no other legal mechanism to protect a forest, desert, or large ecological systems.

On the other hand, developers and speculators want to use their property to make as much money as they can as quickly as possible. But, it is considered tacky to say this directly; so they too have developed socially acceptable arguments to advance their goals. They talk continually about, as Mr. Bush says, "jobs, jobs, jobs".

"Owls vs Jobs" is a metaphor for "saving the environment" vs "making money". The underlying issue is property rights.

The Current Situation

Ideally, the government intervenes when its scientists find that proposed building projects and developments might cause problems to threatened or endangered species. Places that are very fragile and easily damaged, like deserts, and areas where many species abound, like wetlands and forests, often become battlegrounds between their owners who want to develop them and government agencies responsible for protecting endangered species. In practice the administration of the Endangered Species Act is highly political, and the courts have intervened continuously to enforce the laws. Until now, land restrictions to protect endangered species have been treated like zoning laws, and property owners are usually not compensated unless all rights to use the property for any purpose have been denied. This is under the same principle that the state can impose reasonable restrictions over land use. Property owners are not compensated because they can't build a commercial building on a residential lot, nor awarded damages because they can't build in the setback from their property line.

Recently, however, a well organized nationwide coalition, the "wise use" movement has formed to restrict the Government's ability to control development on land that is habitat for endangered species. The "wise use" movement is a formal banding together of stripminers, clear cutters, off road vehicle users, wetlands fillers, government leaseholders and others who have been frustrated by the Endangered Species Act. While its prominent members are mostly grassroots and local organizations, its financing is from corporate interests that stand to benefit the most from weakening the Endangered Species laws. They have recently won some spectacular victories. They are close to earmarking part of the highway trust fund to build off-road vehicle roads in National Forests. They caused a major planning effort in the Yellowstone region to be withdrawn, and several senior level federal managers in the Forest and Park Services to be reassigned and retired. And, they have thwarted wolf recovery plans in various areas.

Their major goal is to change current rules so government restrictions on land use would be treated as a condemnation or a "taking" by the state. They would require the government to pay full market value for all "takings". The huge expense of this would stop the government from enforcing any laws to protect the environment. More than just privately owned land is involved. Mining, logging and grazing takes place on millions of acres of public land through leases and agreements of various kinds. These leaseholders are asserting that restrictions over these public lands should be treated as "takings", and are trying to impede the protection of endangered species even there. Many responsible observers of current struggles over the Spotted Owl believe that the current Administration's refusal to enforce endangered species laws, which has led to massive injunctions over timber sales, is part of a deliberate attempt to create a "train wreck" in the Northwest. This will create such a public outcry that it will be easier to implement the "wise use" agendas supported by the Bush administration, and virtually all Senators and Representatives from the Western states.

The Question of "Taking"

The primary argument against government actions to ensure biodiversity revolves around the "taking" issue. Objections to the government setting aside property for the protection of endangered species is based on Article 5 of the bill of rights which says: "...private property (shall not be) taken for public use without just compensation." Every public forum where land use or biodiversity is even remotely involved very quickly finds itself involved with the "taking" issue. Attempts by the state to bar development or set aside areas are confronted by angry landowners who demand full market value for their property. This is a particular problem with wetlands issues and attempts to eliminate clearcutting on private land; but, is also surfacing where people have obtained long term leases over government land and view it as "their own" land. Even people who introduce domestic animals onto leased public land have persuaded the government to kill indigenous predators who "take" their animals.

People have come to accept the right of the state to restrict and control land use when that use negatively impacts other people, but many people balk at restricting land use for the benefit of other species.

Just Compensation

Even if one agrees a "taking" has occurred, there is a real question of what the "just compensation" might be. The basis for the value of property, and the circumstances of its acquisition are two of the least discussed issues in America. Anyone who has spent time looking into these things realizes that much of the value of property is due to actions of government. Many of the large tracts of private land in the United States were acquired at a very low price or even for free through government land sales and giveaways. Increased value is often created by government action; for example, sewer, water and roads are usually provided at government expense. Farmers, ranchers, timber companies, and miners are provided with a variety of subsidies. The value of individual tracts is decided by county zoning decisions that at the stoke of a pen can transform value by factors of tens and hundreds. While some property owners, particularly farmers and ranchers, have "deep" historical attachments and investments in their land, this is not the case in many instances. "Just" compensation should consider, not merely the current market value of the land, but the basis by which it was acquired, and the circumstances by which its value was increased.

Consider two parcels of land side by side. One held free and clear by a farmer having been purchased by his family in the distant past for a few hundred dollars per acre, but which has had generations of sweat and effort invested. Perhaps it has hundreds of fruit trees that took many years to grow.

The other held by a real estate speculator with close ties to the local government; perhaps he has business associates or relatives on the local zoning board. He purchased the land for $1000 an acre, or possibly optioned the land a few years ago from another farmer. He has managed to have the property rezoned from farm land into commercial land, and persuaded the local county government to use public money to run sewer and water lines to the property. Nearby, it is announced, the state will use public money to build a convention center. The result of all these public actions has been to transform $1000 an acre land into $50,000 an acre land.

If the land must be "taken", what is the "just" compensation for these two men? What is really being "taken" from each of them? Current market value actually has little to do with it. A piece of land whose owner has merely a transitory or speculative attachment and whose price has largely been inflated by public investment should be treated very differently from that held by someone who has a "deep attachment" to his land. Much of what passes as economic development is merely the process of ballooning the value of land by manipulating government to rezone property and provide infrastructure at public expense. A large part of the $500 billion dollars of waste in the savings and loan fiasco was spent to inflate the "fair market value" of American real estate. This process is the primary obsession of most real estate developers and the members of county planning commissions and local government with whom they are locked in a permanent embrace. Since virtually every newspaper is dependent on real estate advertising for most of its income, an information blackout is firmly in place over this whole issue. Property Responsibilities

If one views property ownership as a basket of rights and responsibilities; then, one could argue that the value of inherent rights, whatever they may be, must be offset by the liability of inherent responsibilities for the property. Certainly, with wetlands or other property where development will have adverse impacts downstream and impose financial burdens on the general population, the "current market value" should be adjusted by the burdens that are imposed on the greater society by such development. Viewed in this way one can see that the real value of some property may actually be a negative. It is time claims for ecological responsibility (or property responsibility) be given parity with property rights; even though our history shows that all other competing claims, such as, social needs, human rights, and civil rights have thus far failed.

[Ed note: these ideas were more fully developed in the "Consensus Papers".

  1. Kalmiopsis Audubon Society - Storm Petrel Newsletter
  2. Part 1 of this article
  3. America’s views of property rights was further discussed in the four-part “Consensus Papers” parts 1, 2, 3, 4, this article and also the dictionary.

#60, (v 1.3) 3/14/11

©1991 Jim Britell
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