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Consensus, Partnerships and Roundtables
Is it Unimaginable to Enforce Federal Laws upon the Unwilling?



by Jim Britell


Summary:   Environmental laws are extremely difficult to enforce. The reasons for America's peculiar obsession with property rights.


Background
During my career as a forest activist one moment is indelibly burned in my memory. A state forester and I were overlooking a ridge-to-ridge 1000 acre private land clear cut that had trashed a beautiful river with an important wild fish run. He agreed the scene was a disgrace, but regretfully observed - "You just can't tell a man what to do with his own land." Anyone who works to promote honest enforcement of our environmental laws at any level of government whether through traditional approaches like filing appeals or serving on the plethora of partnerships, roundtables and "stake holders" meetings that have sprung up recently, will soon encounter such expressions.

In America there is an implacable resistance to government interference with anyone's property rights. Activists who serve on local partnerships and roundtables which try to promote better land use, even on public lands, need to understand the unique tenacity with which this idea has taken hold because nowadays even private extractive activity on public land is defended as a personal property right. Property-phobia, like creationism, is a uniquely American phenomenon. This essay, a brief detour from the other more practical tools-oriented essays in this series, attempts to give the history of this peculiar American phenomenon.

Introduction
A notion is abroad in the land regarding the enforcement of environmental laws runs like this: Since America is rational and humane it should not impose its will upon the unwilling as this would somehow be "unsporting". This idea finds expression in two concepts which have been continually promulgated by the last few Administrations:

1. You cannot ram laws down people throats that disrupt local economies; i.e., make new listings of species, enforce the wetlands laws, etc. because people won't accept them, and

2. We must be very selective and careful about how we enforce these laws because if we really enforced the laws on the books that mandate the protection of species we will ultimately lose those laws altogether as the American people and thus the Congress would never stand for it.

Out on the ground these notions have resulted in a flurry of partnerships, roundtables and other mechanisms that attempt to remove the "force" from the enforcement of our environmental laws. Obviously America's environmental laws have run aground on some submerged rock. Why is the government so loathe to engage in any sort of conflict with its citizens over property rights? Is it a general policy that America doesn't like to force things on people? Given the way we acquired the land in the first place it would pretty hard to sell the survivors of the original inhabitants of this continent on the notion that as a general policy America does not force ourselves on the unwilling

And it is certainly not the case that in recent times our country has adopted kindler-gentler policies in general. This morning's paper has a front page article that says Yamhill County Oregon's Commissioners passed a law that forbids Joni Ledbetter, a jail inmate, from leaving the jail to obtain an abortion even though she has a clotting disorder, Von Wellerbren's disease, and a history of miscarriages, and could die without one. Sounds like they don't mind ramming laws down Joni's throat. For everything from abortions to welfare and immigration, our society seems willing to ram all kinds of new laws down people' throats. We are even criminalizing the normal rites of passage of adolescents by giving jail terms to kids who smoke cigarettes or drink beer.

Well, one might argue that a kinder gentler policy has been adopted just for our Federal Forests. But here the government seems to apply the concept of selective enforcement, very selectively. In the last few years the Forest Service has shown that it will ram laws about civil disobedience down the throats of those who refuse to accept logging on public lands. And it is not a matter that it is only human nature for land management agencies to react strongly to physical threats against its personal authority and staff. They have consistently turned the other cheek when local wise use goons using very physical, in your face, uncivil, civil-disobedience have actually assaulted federal employees, and even thrown federal agents off our public land.

It seems that our new policy on "not ramming" mostly applies to the enforcement of environmental laws where property rights are involved. We are paralyzed when people assert property rights claims, even bogus ones connected with mere leasehold or transient timber-cutting rights on public land . Property rights claims seem somehow to take precedence over the laws themselves. How did this peculiar situation evolve.

The American View Of Property Rights
It is very hard to appreciate just how obsessive America is about property rights because we live with it daily, but if we step back a little and look at it from a historical or a foreign policy perspective it becomes easier. Because of unique circumstances that existed at its creation, the United States adopted a concept of property rights which, while possibly appropriate for the 1700's, has been totally outdated by the developments of modern industrial technology, particularly the mechanization of the extractive industries.

The first few hundred years of this country were a constant struggle of people to take land away from the Native Peoples, the French, the English, the Spanish, the Mexicans and each other. And talk about "takings", during the American Revolution title to the estates of British landowners sympathetic to England, majorities in some places like New York, were simply transferred to revolutionary officers and politicians. Since Revolutionary times if serious challenges to property rights were allowed to develop, they could have unraveled the whole social fabric of the country.

At the time of our revolution the founding fathers had to develop a policy that would justify the existence of human slavery, and protect private property even if the title was questionable. By mixing and matching political theories the founding fathers developed the original concept that the consent of the governed, acting through their government, could cancel all preexisting British property rights without due process, but that once these rights were acquired no one could ever take them back. Property rights would underlie and supersede all other rights. In practice this became a defacto policy that, while American citizens could steal others people's land, no one could ever steal it back from us.

It was necessary to develop strong normative values against ever having to give property back once it was stolen fair and square; because that was how you got it in those days - besides there seemed to be an unlimited amount of land around. The thinking was sort of - steal your own land and leave mine alone. The 1700's and 1800's in the United States were one of the biggest speculative orgies in the history of the world. A whole continent was up for grabs. George Washington was not only the father of his country, but the mother of all land speculators, and the grandfather of all developers.

If you applied the recent Helms-Burton act, which seeks to punish Cuba's nationalization and confiscation of American corporation's assets during the Cuban revolution, to the United States as some wags in Canada have proposed, we would have to give most of New Jersey back to the Canadian descendants of the original rightful owners who fled to Nova Scotia 200 years ago.

Also, if challenges to private property rights had been allowed to develop they could have threatened slavery which was practiced, even by the early presidents of the United States, under the legal rubric that slaves were legal property and you couldn't tell a man what he should do with his own property. Slavery was not a phenomenon limited to the southern states. In the New York City of 1770 one person in 7 was a slave. It had more slaves than any other American city except Charleston, South Carolina. At the time of the first census in 1790, 40% of the white households in Brooklyn, Queens and Staten Island reported at least one slave; 20% of the families in New York City were slave holders.

Times Change
Americans developed a way of thinking about property rights that derives from John Locke. His influence on the founders of the United States cannot be overstated and his ideas are the basis of the Declaration of Independence and the Constitution. The inviolability of property rights, limited government, and the inalienable rights of individuals are all ideas taken from Locke. One of the most influential of Locke's ideas to be adopted by the founders of America is his view of the relationship of government and private property. Writes Locke, "The great and chief end therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property..." In 1669 Locke helped draw up the constitution of Carolina, which accepted slaves as rightful property.

Of course the world of America in 1600 and 1700 when Locke' ideas were developed was much simpler than today. The biggest hole a person could dig was with a shovel, and trees were cut down with axes. Since John Locke we have developed the chainsaw; heap leach mining; oil drilling platforms; the ability to alter the planet's weather; nuclear waste; and countless poisons, toxins and chemicals whose effect on man and nature, acting in combination or even singly, are totally unknown. It is more than a matter of scale to go from watering your stock in a river to running an outflow pipe from a chemical plant into it.

Our concept of property rights was developed before humans had the ability to eliminate very many species; when neither modern technology had been invented nor the concept of evolution yet discovered. While downstream effects were causing sanitation problems in those days, there was no experience with Love Canals or extensive species extinction. People couldn't even think about the possibility of human technology being able to eliminate species, let alone be concerned about it. Between the time the theory of the evolution of species was discovered and the end of the ability of the tops of food chains other than humans to evolve in peace and quiet took only about 100 years.

Obviously, as time passed, we had to impose some national environmental restrictions on property but, since it was considered too radical to deal with the problem directly and since Americans have always been suckers for appeals for "mercy", a unique American solution was 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 clear cutting trees from horizon to horizon is the existence of some obscure bird nesting in one of the trees. Strip miners 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 not the land itself. Since 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.

In this country we tend to avoid discussing certain kinds of property issues directly such as; who owns the land, how they acquired it, how much they paid for it, and what they are going to do with it. So we have developed elaborate code words. Developers and speculators who want to use their property to make as much money as they can as quickly as possible consider it tacky to say so; they talk continually, as Mr. Clinton and Bush before him have, about "jobs, jobs, jobs" - environmentalists talk about woodpeckers and owls. But "owls vs jobs" is a metaphor, and the real issue the metaphor always points to is property rights.

We Don't Restrict Our Property Rights Notions to Domestic-Use Only
Our peculiar notions of property rights do not stop at our borders. America has been enthusiastically exporting our ideas about property rights since before we were even a country. In our first invasion of a foreign land in 1775, when the siege of Quebec began, in order to persuade the people of Quebec to join with Americans against the British we printed handbills and had Indians shoot them into the city wrapped around arrows in part they said [private property has] "ever by us been deemed sacred."

That we exported our ideas about property outside our borders can be seen in the history of almost every country south of us. We have always maintained that the consent of the governed of a country cannot apply or interfere with American companies property rights, no matter how they were acquired. For a foreign government to disturb property rights is not only politically unacceptable to the US, but treated as sacrilege. America has made the protection of property rights, especially those that American companies had acquired over foreign assets and property, the fundament of its foreign policy. Countries that assert the right of their governments to regain control and ownership of their land without paying reparations have been treated very harshly, and make a long list that includes: Mexico, Chile, Nicaragua, Panama, Vietnam, Iran and many others. In those countries, governments, even popularly elected ones, have been removed by force and elected officials killed by our government to preserve the principle that the power and very authority of any government over its internal resources are subordinate to preexisting property rights, especially those of American corporations - extra-domestically it's sort of "one strike and your dead".

Since America's ideas about liberty, freedom and democracy are inseparably intertwined with our ideas about sanctity of property rights, it has been impossible for countries under totalitarian rule, where the assets of the county have already passed to foreign control, to incorporate American Democracy as part of a revolutionary political strategy. This is why Marxism has been so attractive in the third world. Not that emerging countries like Communism so much, but that America demands the acknowledgment of preexisting property rights and claims while Marxism allows for the canceling of such claims without reparations.

Countries emerging from decades of dictatorship love America's revolutionary history and the way we escaped from English domination - Ho Chi Minh used our Declaration of Independence as the text for his first inaugural speech - but they know that if they try to use those new democratic principles to touch the foreign ownership of their land or any treasures beneath it, like oil, their lives won't be worth much. America will try to "bomb them back into the stone age".

On the other hand, if a country does turns communist like Vietnam and they later agree to participate in processes which will result in the acquisition of their resources by American companies, they quickly gain "most favored nation status". This in why we love certain communist countries like China, and hate and wish to destroy others like Cuba.

As the Wobblies found almost 75 years ago to the day of the Clinton forest summit, when they challenged property rights in Pacific Northwest Forests and were subsequently hunted down like dogs and shot, and what every elected president of every country has learned since our revolution: it is not good for your life expectancy to challenge American's peculiar notions of property rights or god forbid to ever try do to us what we did to the English. So when forest activists have problems in their local partnerships, roundtables and watershed councils what they are experiencing is more than a mere failure to communicate.

Whether one is examining foreign policy, domestic energy policy or the extermination of endangered species, America's policies can always be predicted by first determining what is in the best interests of protecting the property rights of the strong in this country, irrespective of whether those rights were acquired by purchase, theft, corruption or force. That will be the policy followed. The only countervailing force will be American's susceptibility to claims for mercy. To be sympathetic to appeals for mercy, resistant to appeals for tolerance, and value property rights above all is a heritage we have inherited from Protestant Britain and John Locke.

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©1997 Jim Britell
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