Defenders Represent PA Farmer Against EPA
WATERFORD, PA
FOR IMMEDIATE RELEASE
August 30, 2006
After a long-fought battle against the government to obtain compensation for the taking of their farmland, Robert Brace may finally see his day in court before the end of this year.
Mr. Brace’s battle with the government began in 1987 when the U.S. Environmental Protection Agency and the U.S. Corps of Engineers told Mr. Brace he could no longer farm on part of his Erie County land because it was considered wetlands. This was land that Mr. Brace had purchased in December of 1975 from his father and which he intended to use to continue and expand his family farming business. Although the soil on this land was highly productive for farming, it was considered to be poorly drained and in need of drainage to make it suitable for production of cabbage and potatoes. Thus, with the assistance and funding of another federal governmental agency, the U.S. Department of Agriculture, he arranged for and began excavation and burying of plastic tubing, “drainage tile,” to improve soil conditions for row crops. This was a common practice in Erie County during that time period and was encouraged by the USDA.
After Mr. Brace had expended considerable sums to install this drainage system and maintain it so that the land would be productive for crops, the EPA told Mr. Brace he was in violation of the Clean Water Act and brought an enforcement lawsuit against him in a Pennsylvania federal district court. Although the district court in 1993 agreed with Mr. Brace that his activities should be considered “normal farming practices,” which are exempt from the Clean Water Act’s provisions, the Third Circuit Court of Appeals reversed that decision. After the Supreme Court denied his petition for certiorari, Mr. Brace was forced to enter into a consent decree in which he agreed to remove a major part of the drainage system he had installed on his land and restore thirty acres of his land to unusable and undevelopable wetlands “in perpetuity” according to a restoration plan drafted by EPA. He was also forced to pay a $10,000 fine.
Mr. Brace then filed the present lawsuit in order to seek compensation for the taking of his land in 1998. However, before he could obtain his day in court, he was forced to face numerous motions filed by the federal government to try to keep the case from going to trial. Since 1998, the government has filed two motions for summary judgment, one in 2000 and one in 2001, alleging that it had not taken Mr. Brace’s land. Both those motions were denied. In 2002, the government filed a motion to dismiss, claiming Mr. Brace had failed to state a claim, and that motion was also denied. With no more legal avenues for the government to delay trial of the case, the parties proceeded with identification of their witnesses and discovery.
Currently, both Mr. Brace and the government have identified the key witnesses they intend to present at trial, including expert witnesses, and have just wrapped up depositions of those witnesses.
In addition to his own testimony, Mr. Brace will present two fact witnesses at trial and one expert, a land appraiser. One witness is Joseph Burawa, who is now retired, but was County Executive Director for the Agricultural Stabilization and Conservation Service (ASCS) for Erie County, part of the USDA, from 1967 to 1989. Mr. Joseph Burawa, will testify that from 1975 to 1985, the ASCS actively encouraged farmers by providing them financial assistance and technical assistance (through its sister agency, then known as the Soil Conservation Service or SCS) to maintain, improve, and expand agricultural drainage systems on their farms in Erie County. He will testify that Mr. Brace sought assistance from ASCS and SCS in 1970 to prepare a drainage plan for his land. He will further testify that SCS provided him technical assistance in preparing and implementing the drainage plan and that ASCS partly funded the project.
Another witness for Mr. Brace is John Burawa, a commercial lender with Mercer County State Bank in Erie County, who has had a financial relationship with Mr. Brace since late 1970s. He will testify to the severe impact that the government’s actions in this case have had on Mr. Brace’s farming operations and financial condition. He will also testify that it is only due to Mr. Brace’s exceptional business acumen that he has been able to keep his business afloat and provide for his family during these hard times. Mr. Burawa will further testify to his knowledge of the feasibility of farming and value of farmland in Erie County, having had decades of experience in lending to farmers in the area.
Finally, Mr. Brace will present at trial an expert land appraiser, James Lignelli of Diversified Evaluation Company in Pittsburgh, Pennsylvania. Mr. Lignelli valued Mr. Brace’s property (a 58 acre tract) at its most profitable possible use, known as the “highest and best use,” for a residential subdivision development. Based on a conceptual development of a subdivision with 125 lots, Mr. Lignelli will testify that the property in 1996 (when it was taken by the government) was worth $455,000. He will also testify that after the government took 30 acres of that land, requiring Mr. Brace to remove the extensive drainage tiles he had installed on those acres, fill in ditches, and restore the property to wetland, the entire tract has no fair market value.
The government has identified three fact witnesses and one expert. According to the government, one of its identified witnesses, Jeffrey Lapp, currently the Wetlands and Oceans Program Manager for EPA’s Region 3, will primarily testify at trial regarding his role in drafting the restoration plan for Mr. Brace’s property in his position then as Wetlands Enforcement Coordinator. In deposition, he testified regarding the extensive work that Mr. Brace was required to undertake in order to “restore” his drained farmland to unusable wetland. A second witness, David Putnam, who is currently a wildlife biologist with the U.S. Fish and Wildlife Service, will testify at trial regarding his involvement in the enforcement action against Mr. Brace. At deposition, he stated that FWS and EPA, as well as several other governmental agencies, all believed that they had a strong case against Mr. Brace in the enforcement action and that it was clear that the government had jurisdiction over the 30 acres of land that ultimately became subject to the consent decree. Finally, the government may present at trial the testimony of Lewis Steckler, the District Conservationist for the Natural Resources Conservation Service (formerly SCS) in Erie County. He stated in deposition that SCS did indeed assist Mr. Brace in preparing and implementing a drainage plan on his property. He also stated that after the consent decree, he personally observed Mr. Brace being forced to rip out the extensive drainage system on his land, only days before Christmas in 1996.
Finally, the government will present the testimony of its expert witness, George Silver, of Burlington, Vermont. Mr. Silver valued Mr. Brace’s property (135 acre tract) for a highest and best use of a diversified cash crop operation, concluding a value of $355,000 before the entry of the consent decree, despite the fact that, as he stated in deposition, he failed to talk personally with real estate developers or brokers in Erie County to see where trends toward development of such land were going. After the 30 acres were made subject to the restoration plan in the 1996 consent decree, Mr. Silver valued the property at $305,000, only $50,000 less than the value before the consent decree, despite the fact that those 30 acres were rendered completely unusable and must be kept as such “in perpetuity.”
Now that depositions of the key witnesses have concluded, the next step is for the court to set a trial date. Both sides have proposed possible trial dates before the end of the year and filed a proposed trial schedule with the court on July 2, 2004.
4th Grade Common Sense
4th Grade Common Sense! The article discussed below was written by the Granddaughter of Pla Vice-Preisdent Mr. Robert Brace. Read the paper in her own handwriting below.
9th Grade Common Sense
** The following article was given as part of an oral presentation by Hillarie Brace, granddaughter of PLA Vice President Robert Brace, for an oral communications class at General McLane High School. The article has since been published in “The Environment,” released by Green Haven Press and edited by Mary K. Hill.**
Hillarie Brace
Mrs. Kemp
Oral Communications
5 March 2005
Your Property Rights
I want to start off by asking you to take a second and think about your grandfather, or the general image of a grandfather. Now I’m sure you imagine the usual fishing trips, camping, backyard games, and warm hugs. Now let me tell you about my relationship with my grandfather. He has been fighting the government for his rights for almost 19 years. He is no different than any of your grandfathers; however he has been denied his rights guaranteed to him in the Fifth Amendment of the United States Constitution, and because of this he has not gotten to know his grandchildren like he should. We can thank the United States government for that. They showed up on his family farm in 1987 and told him he could no longer use a piece of his land, which, if put to its best use, would have an estimated value in excess of three million dollars. He did not only lose this profit, but was also forced to pay taxes and legal bills. This was all because the land fell under the category of “wetland.” Now I understand the importance of wetlands and am not here to tell you that they aren’t important; we need to realize, however, that as our government tries to protect the wetlands, they are ruining our nation. We need to educate everyone on this vital matter, before it is too late.
First, you have to realize how our government works. When you think of the government, you generally think of a system that helps the common good, all people. But if you believe that, you are mistaken. Yes I will agree that the government does help most people, however they do not help all of us. Slowly they are taking away our private property, making it public property, and destroying our nation. Picture this: you are fresh out of college, newly married, and are looking for somewhere to settle down. There is a beautiful one-hundred acre piece of land for sale with a price tag that fits your budget. The possibility remains, however, that the government will step in, once you have purchased it, and tell you that you must vacate it, return it to its natural state, and still pay taxes on it. You most likely are not going to purchase this land, correct? This threat does exist, however most people are not aware of it. The government can step in at any time and take your land away, whether you think it is for a good reason or not. We need to educate everyone about this, especially those who are in high school, so that we may change this before it gets to far out of hand. If not we may find ourselves in that situation.
Next, you need to realize that this does affect you. While speaking with Mrs. Kemp last week on this issue, she told me that it will not affect anyone in this room for quite awhile, however I believe this is not true. My grandfather has been on his own since age fifteen, has been farming since this time. We are all at the age where we are beginning to think about our futures. Some of us are thinking about college, taking interest surveys through the guidance office to find out what types of careers we may be successful in. Others in this room will be heading off to college in the fall, and the rest lay somewhere in between. No matter where you are at, you are mostly likely thinking about your future, myself included. Each and every one of us has high hopes it will be the very best. So why not start now to make these changes, so that they do not suddenly come upon us and startle us. When Bob Learzaf’s uncle made a purchase of a parcel of land in 1923, he assumed, like anyone would, that he was guaranteed his rights by the Fifth Amendment and the land would remain rightfully his and in his family unless he sold it. This is not the case. In 1996, Bob was now the owner of the land, and he was told that he must vacate the property and burn his cabin. We need to get the word out about situations like this and educate ourselves so that we don’t become victims like Learzaf.
Lastly, I would like to bring to your attention that all of us are environmentalists to some extent. We all have probably recycled something at one point in our lives, picked up a piece of discarded trash, and all want a clean environment in which to live. There are those extreme environmentalists, however, which pose a threat to our property. Brock Evans is one of these extreme environmentalists, of private property he says, “Let’s take it all back.” Extreme environmentalists believe that we do not actually own land, they believe that we are just here for a here for a short period of time to care for the land, then we die and someone else takes over that duty. Now I agree that we are only here for a short time and that once we pass away, someone else will take over our duties. I do not believe, however, that we do not own land. We pay a purchase price, taxes, and other fees to maintain the land. Extreme environmentalists, with their attitude towards the whole thing, however, will do whatever it takes to deprive an individual of their private property. Even a piece of seemingly dry land may be considered wetlands if the choice of classification falls into the wrong hands. If we educate ourselves and our peers, we will have a much better chance at protecting ourselves from facing this horrible situation.
In conclusion, I am asking you to educate yourself and those around you about property rights. This way, when you purchase your property, you will not be denied the rights guaranteed to you by the Fifth Amendment of the United States Constitution, and your land will remain your own.
Bibliography
Lamb, Henry. 13 January 2005. Feds say: burn your cabin or go to jail.
“Victim Update: Bob Learzaf.” Pennsylvania Landowner Spring 2000:8.
Walters, Timothy Robert. The Endangered American Dream. Srafford:Rawhide Western Publishing, 1995.
Victims - Robert Brace
Robert Brace & Sons, Inc.
Waterford, Pennsylvania
Bob Brace seeks compensation from the federal government for substantial damages he incurred to comply with federal wetlands rules. Those regulations destroyed a key parcel of prime land on the Brace homestead farm and wasted 10 years worth of his personal sweat equity and another 10 years of expensive litigation in the Tucker Act Shuffle. In his complaint, Bob is seeking compensation for his land, for which there is no longer any economically viable use, and for losses resulting from being unable to use the land since 1987. Because of permanent restrictions imposed by the United States, his property cannot be farmed or developed. If Brace could put the land to its highest and best use, it would have a value in excess of $3,000,000.
Ever since the wetlands enviro-police showed up at his farm in 1987, Bob Brace has devoted a substantial portion of his life to two objectives: First, working within the confines of the system to defend his family’s land in a lengthy Court battle challenging the federal government’s takeover of normal farming in rural Erie County under the guise of wetlands regulation. And second, speaking out on the rapid erosion and ultimate destruction of Constitutionally protected private property rights that results from excessive environmental regulation by educating and encouraging landowners to stand up for their rights.
Bob’s efforts, along with a handful of his supporters, led to the formation of PLA and gave a voice to property rights in Pennsylvania.
Can the Government lock up your land for some bureaucratically contrived public purpose without justly compensating you?
Does the takings clause mean what it says?
Brace and his family have been vilified and ridiculed by the media, regulatory bureaucrats, and those who make a living off regulation or “go along to get along.”
He has also been abandoned by political leaders who jumped on his bandwagon when they thought it was politically expedient, but jumped off when environmentalists turned up the heat. For example, it is no secret that Governor Ridge flip-flopped on wetlands reform after he was elected. Not only did Ridge leave Bob Brace and hundreds of similarly situated Pennsylvanians in the lurch, but he also went out of his way to scuttle Representative Howard Fargo’s state wetlands reform legislation (House Bill 200), a measure that was patterned after then-Congressman Ridge’s wetlands reform bill, H.R. 1330. Regrettably, the record of Pennsylvania’s United States Senators on this issue is not too sterling either. Landowners like Bob Brace have come to know all too well the difference between campaign rhetoric and forthright legislative leadership and tough votes.
For the last 11 years, Bob Brace has been an outspoken voice for the Constitutional rights of ordinary citizens not only in Pennsylvania but throughout the nation. He has been a beacon of hope to the little guy who is being overwhelmed as the juggernaut of government control rolls over private property rights. He has traveled throughout Pennsylvania and the United States to carry his message to landowners and ordinary citizens, and he has received recognition and awards for his unflagging defense of property rights.
Much to his credit, Bob has also played by the rules, and his only uncorrected violation has been to continue speaking out against injustice and the erosion of our constitutional system. People who know what it’s like to cope with aggressive environmental bureaucrats and lawyers are truly fortunate to have an advocate like Bob Brace whose personal philosophy and courage defines what it means to “take a stand for your land.”
The question is now before the Court of Claims.
Can the Government lock up your land for some bureaucratically contrived public purpose without justly compensating you?
Does the takings clause mean what it says?
Bob Brace hopes that the bedrock principles in which he so strongly believes will at last be vindicated.
What Is The Tucker Act?
TUCKER ACT. - The Tucker Act, 28 U.S.C. S 1491, grants the U.S. Claims Court “jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.’ ” Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Therefore, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment.
The Tucker Act, 28 U.S.C. S 1491, provides in relevant part: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
For further information on the Tucker Act please visit:
http://commdocs.house.gov/committees/judiciary/hju56127.000/hju56127_0.htm
PLA Testimonies
Forestry Task Force on the Forest Legacy Program in Pennsylvania (not currently available)
By Keith Klingler
President,
Pennsylvania Landowners’ Association
Subcommittee on Commercial and Administrative Law
By Robert Brace
RE: The Regulatory Fair Warning Act
The French Creek Project (not currently available)
PLA’s Comments Concerning the Western Pennsylvania Conservancy’s Draft Conservation Plan for the French Creek Project
Submitted By Henry Ingram, Esq.,
Resource Law Partners
On Behalf of
The Pennsylvania Landowners’ Association
Senate Environmental Resources & Energy Committee
Hearing on Pennsylvania Special Protection Waters Program
By Henry Ingram, Esq.,
Resource Law Partners
On Behalf of
The Pennsylvania Landowners’ Association
and
The Pennsylvania Bluestone Association
Local Government/Environmental Resources & Energy Joint Committee (not currently available)
By Henry Ingram, Esq.,
Resource Law Partners
PA Fish & Boat Commission (not currently available)
By Thomas Coffin, President,
LeBoeuf Manufacturing
Pennsylvania Landowners’ Association, Inc.
When Legislation Fails
Why You Should Post Your Land!
In case it isn’t clear from the cover story, the property rights of landowners whose land is crossed or bounded by streams and small rivers in Pennsylvania are under attack . Pennsylvania has allowed itself to be maneuvered (or worse has volunteered) into asserting a claim of ownership to the Little Juniata River, including the streambed’s, and by necessary implication, hundreds of other streams which have similar physical or
legal characteristics .
This is a different situation than land with wetlands, woodlands where the Indiana Bat nests or property containing historical artifacts . With those, Pennsylvania only dictates that you can’t use the land . With streams, Pennsylvania is trying to grab the title as well, presumably because it makes it easier to provide access and use by the public (meaning anyone) if the Commonwealth is the owner and the permission of the riparian owner doesn’t have to be obtained .
Under either scenario, property rights are being destroyed and, PLA believes, taken for public use without just compensation to the owner.
Some riparian landowners might say “Why should I care? I always let people on to fish and hunt .” or “Gee, I didn’t know I owned the streambed.” The answer to these questions is that before you know it, your property rights are taken and your land has become part of some public park. It’s a little bit like the guy who hears about a recreational trail being created on a long abandoned railroad right-of-way . Who cares . Maybe you don’t . . . until strangers come tramping through your back yard over the old right-of-way. By then, the trail has taken on a life and momentum of its own and
you can’t afford to do anything about it .
If you think you can bury your head in the sand and ignore what’s going on around you, you’re sadly mistaken . All you have to do is read your back issues of the Landowner to be reminded it’s happening all around you to people just like you . These
aren’t isolated cases involving enforcement against a few odd balls or nuts . If you’ hadn’t picked up on it already, it is the modus operandi of power-hungry, land-grabbing governments . It goes like this .
Isolate and launch an attack on one target, overwhelming the target by concentrating government resources including lots of lawyers, on him . Grind him down and tie him up in costly litigation . When that target crumbles in the onslaught and knuckles under, the other similarly situated people either “keep the old head in the sand” and say it won’t happen to me or, sadly, realize its too late to do anything about it . This is what would have happened to all other landowners along the Little Juniata
River if Donny Beaver hadn’t drawn the line and resisted the Juggernaut . But the power hungry, land grabbers don’t quit .
This is where the PLA Posting Program comes in . You can push back and fight back by simply posting your land. That way you discharge your responsibility and duty as a land owner to take care of your land and as a citizen to protect your property rights. You also take a stand against the kind of regulation and enforcement that is divesting you of your rights, sometimes so gradually as to be virtually imperceptible and sometimes suddenly, like the Commonwealth sneak attack on the Little J riparian owners .
For more information regarding the Pennsylvania Landowners’s Association ‘Posting for Support Program’, please visit our posting information page or Contact Us today!
whenlegislationfails |
From The President
PLA President Keith Klingler on Taxpayer Funded Subsidies
It never ceases to amaze me how private landowners who claim to be conservative property rights advocates can’t resist grabbing the dangling green carrot called taxpayer funded subsidies. These landowners (Mostly large corporate) don’t seem to be satisfied with existing programs, so they are lobbying for more, such as a state forest legacy program. Even though groups like PLA have pointed out how unethical, unaffordable, and bad for the free market system these programs are, some landowners seem determined to wipe out as much of this competition as they can. By consuming as many tax dollars as they can get their hands on, these mostly large land owners see no problems padding their bottom line at our expense. The result is devastating to the competitors of these companies, because with large taxpayer funded checks, they can pay well over appraised value for land that’s on the market. The next step is that they will immediately apply for subsidies for these new lands they’ve purchased, and the beat goes on.
Remember, the biggest subsidy game is conservation easements. This is where development rights are purchased by a Land Trust or Conservancy using state, federal or local tax dollars as the funding source. The question I’ve asked and have yet to get answered, is how does an appraiser determine the value of development rights? I’ve done several small subdivisions in my time and believe me there is enough regulation out there to put most of Pennsylvania’s vacant land off limits to development. First in some areas you have Township subdivision regulations to deal with including zoning. Then you will have country subdivision ordinances to deal with. These are mostly surveyor and boundary line related. Last you have the grand finale called the state sewage facility planning module. In this document you have to prove every lot has an acceptable on lot sewage site. If the soils are determined to be “marginal” you’ll need two approved sites.
This is the most difficult part of the planning module, as our states soil, especially in Northwestern Pennsylvania are not the best for this type of use. Even if your soil pass the test pit & perk test portion other factors may fail your sites such as slope, (must be under 15%), proximity to an oil or gas well, spring or other water course, boundary lines or right of way. Your property must be plotted on topography, floodplain, and wetland maps along with a half dozen pages of other information. This is all based on the assumption that your lots have public road frontage. If road building is necessary then you fall under another host of regulations which will include the federal government. So to those DCNR and U.S. Forest Service employees who think developers can just plop down a subdivision anywhere, therefore government needs to “protect” all the vacant land in PA by buying the development rights, think again. In my humble estimation 75% of PA’s land is off limits to development simply due to current regulations. Just think about the 15% slope issue alone. If the only way you could develop this land is if you had public sewage and water how much is under development threat?
To accurately determine development right value, the applicant should have to prove that the property can pass all the relative regulations pertaining to subdivisions. This would include soil testing with a backhoe on a grid layout over the entire property, I guarantee that none of these things have happened on the land where development rights have been purchased.
Therefore we may never know how much of this land was already off limits to development, and taxpayer’s money was wasted. The answer to this dilemma is simple. Our legislators must place into the application for easement funds the requirements that the development potential must be proven by going through the subdivision process for each property. The only other solution is; eliminate all state and federal taxpayer funding of private easement acquisition. Believe me, PLA prefers the latter.
Pennsylvania Landowners’ Association, Inc.
P.O. Box 391
Waterford, PA 16441
Phone: 
1.814.796.4023
Fax: 1.814.796.1434
e-mail : info@palandowners.org
From The Vice President
I want to make a few remarks about being on the Defense instead of offensive.
After 17 years of fighting for Property Rights, and the right to own and use property as our “Constitution states in the fifth amendment” “Nor shall property be taken without just Compensation”I believe we have to get the property rights Victims and Landowner groups to get on the offensive instead of the Defensive. Reason being that after 17 years of going thru the court system myself I know that it is unbearable for individuals as well as American business to fight under the “Tucker Act” which I will explain after my trial in November, 2004.
We as victims and Property rights Groups expected more from the Bush Administration. Recently he went against us on National heritage Areas as well as no relief of Wetlands, Endangered Species, or the clean stream law, Section 404 Program and it’s controlling all Flood Plains and Pasture land throughout the country.
We don’t have enough resources to fight every regulation and administrative Law order that people and business are receiving daily and they shouldn’t be expected to in a country with Private Property Rights.
Under administrative Law orders we don’t have the right due process and are guilty when you receive the orders. So in getting our State and Federal Legislatures to Support Ronald Regan’s Executive Order of 12630 we have to be back to the Mid 90’s when Hank, God Bless told us to wake up, Don’t relax – get our heads out of the sand stay involved and write your state and Federal representatives to support bills “State and Federal” that compensation for any takings case. We have tried to work since the mid 90’s with environmental groups and it is failing and we have lost ground by working with them.
Land is our resource to educate people, it is a long process to educate 40 years of people being told there is no such thing as Private Property.
Post massive amounts of land, don’t let them use property we can’t unless they want to learn why land is posted.
FOR FURTHER INFORMATION CONTACT THE
PENNSYLVANIA LANDOWNERS’ ASSOCIATION, INC.
Pennsylvania Landowners’ Association, Inc.
P.O. Box 391
Waterford, PA 16441
Phone: 1.814.796.4023
Fax: 1.814.796.1434
e-mail : info@palandowners.org
Whose Property Is It?
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - October 1995
Whose Property Is It?
Do we really have ask?
The emergence of property rights as a national and Pennsylvania political issue for the past five years has caused great hue and cry among environmental regulators, politicians and the anti-development/preservationist lobby. It was spawned in large measure by the growth of state and federal land-use regulation of the past two decades, which has sparked a firestorm of grass-roots agitation. Landowners around the country are upset with their government for denying them the free use of their land in the name of protecting endangered species, maintaining “Wild and scenic” Rivers, preserving wetlands, and establishing parks. Indeed, literally dozens of state and federal statutes and programs restrict the non-harmful use of private property.
Politicians and regulators are confused. They think: “Look at all the good we’ve done and now the voters are mad! What happened?” what happened is things just went too far in the system is out of balance.
Politicians began to wake up to the fact the ecosystems and biodiversity don’t pay taxes; and the shrill voices of the large anti-development organizations don’t always have the votes and they certainly don’t pay taxes. In fact it’s the other way around. They get tax dollars from you and me through direct government grants and other thinly disguised transfer payments. However it seems that the voices of hard-working, tax paying, voting, ordinary citizens are being heard.
A good example can be found in Indiana County where recently the County Commissioners voted down a contract to conduct a Natural Heritage Inventory funded in part by key ‘ 93 money. There was just too much public opposition. According to press reports, local citizens were concerned that an NHI would lead to even more excessive environmental regulations. This shows what can be accomplished if landowners stay awake and stay together. Americans believe deeply in the right to private property. According to Competitive Enterprise Institute, Democratic pollster spell Celinda Lake found that two-thirds of Americans believe that property rights are in adequately protected under current law. Similarly, while polls seem to indicate broad public support for current environmental laws, those same polls show strong public sentiment in favor of compensation for regulatory takings. A 1995 Roper-Starch poll found that 66 percent of Americans think that “The government should be required to compensate” individuals and businesses who suffer land devaluations due to federal wetlands and species protection regulations. Only 26 percent said the government should not.
Property rights organizations are now active in every state in the nation. As of October 1994, a dozen states had enacted property rights protections of some kind and legislation is being pursued in dozens of others including Pennsylvania. Property rights were an issue in the last election cycle. It is clear the candidates were not helped if they appeared to oppose increased protection of private property. Many believe that the issue of property rights increased the Republican majority in the House by at least ten seats. Remember the Contract with America?
The two federal laws and state counterparts responsible for the lion’s share of regulatory takings are the Endangered Species Act (”ESA”) and Section 404 of the Clean Water Act (”CWA”), the source of regulations severely limiting the development of privately-owned wetlands. However it would be a mistake to believe that these are the only to federal laws that unduly limit the use of private land. Any bill seeks to protect the property rights of Americans must cover all laws that deprive landowners of the reasonable use of their land. There is no rational basis upon which to pick and choose which laws, environmental or otherwise, should be covered. Regrettably, the bill that passed the House as part of the Contract with America applies only to a handful of laws.
Nonetheless, because the ESA and the CWA’s section 404 are the primary focus of landowner ire, they merit special attention. According to the General Accounting Office, over 75 percent of those species currently listed under the ESA rely upon private land for some or all of their habitat. In the case of wetlands, approximately three-fourths of the lands that meet the regulatory definition of “wetlands” are on private land.
Thus, as long as government continues to rely upon regulation to protect the so-called public resources, widespread conflict with private landowners will continue. Despite the public uproar over excessive regulations, restrictions on land-use continue to roll off the government red tape machines. Take a look at the draft management plan for the Allegheny River issued recently pursuant to the Wild & Scenic Rivers Act. It is certainly no model of sensitivity to private property rights. And proponents of “absolute protection” for the River are crying the blues because more federal (meeting tax payer) money is not available to lock up even more riparian private property. And keep an eye on this: The new Pennsylvania Department of Conservation and Natural Resources has announced $920,000 in “state grants” to governments and preservation groups for Rails-to-Trails projects in five counties in southwest Pennsylvania. The college state money but it is actually Key ‘93 money which comes from realty transfer taxes we pay. It will be used to facilitate the acquisition of more land for “public use. ” Why don’t we fix our roads or existing parks first? And although the Ridge Administration has marginally altered the application of wetlands regulations so as to blunt their impact on private parties, particularly small lot developers, the reform doesn’t go far enough.
The strongest opposition to the protection of property rights comes from representatives of the environmental, anti-development establishment. The standard charge against paying compensation for regulatory takings is that this would involve “paying polluters not to pollute” and lead to porn shops next to schools and liquor stores next to churches and therefore would undermine the protection of public health and safety. Who these people think they’re kidding? One is the last time readers of The Landowner tried to put a porn shop next to a church or school?! When someone starts flashing now with this kind of counter intuitive, ad hominem attack in debate on public policy issue, you know you have him on the run!
The proper aim of government efforts is to protect “the environment” is to prevent activities which harm the environment or thrust harmful substances upon on consenting persons and their properties; and, failing that, to punish those who violate the rights of others in this manner. This is the aim of controlling pollution-controlling the unwanted imposition of wastes or toxins by one party on another.
Indeed, the current controversy over property rights should not be viewed as being about government pollution control efforts or protection of public health and safety. Most property rights advocates are rebelling against federal government regulations, largely environmental, that restrict the reasonable use of private land. Most “takings” cases arise not when public health is at risk, but when the rights of landowners are suppressed by the exercise of bureaucratic power for non-essential, usually aesthetic, purposes.
Groups opposing property rights legislation typically argue that federal environmental laws do not take private land, and that requiring compensation for regulatory takings would impose an extreme financial burden on the government. Those two arguments are contradictory, and takings opponents cannot have it both ways. Either property rights are not being violated, and a takings compensation requirement would be superfluous enactment, or violations are rampant, and substantial amounts would have to be paid in compensation. Only one of these arguments can be true.
The Clinton Administration has implicitly acknowledged that the latter is more likely to be the case. In a June 7 letter to Senate Judiciary Committee Chairman Orrin Hatch, White House Office of Management and Budget Director Alice Rivlin claimed that the House property rights bill would cost $28 billion over the next seven years. For the federal government to be exposed to such financial claims, federal regulations must be infringing upon the rights of landowners on an unprecedented scale.
Overblown claims about the potential cost of a takings compensation requirement obscure the more fundamental issue. Land-use restrictions inevitably entail costs. The real issue is who should bear those costs. In a recent newsletter, the competitive Enterprise institute called James Hoffman, Dean of the Northwestern School of Law at Lewis and Clark College on this point. He said:
The pervasive notion that society can avoid the costs of public action if Government can avoid compensating for property affected is simple self deception. The costs of government action will be borne by someone. The compensation requirement, like a rule of liability, simply determines who that someone will be.
Under current policy, “public goods” provided by government such as military bases and highways are created by purchasing lands from private owners. On the other hand, “public goods” like wetlands preserves and wildlife refuges are created by bureaucratic edicts that deny property owners the use of their land. If the public wants to protect the habitat of endangered species or preserve an ancient stand of trees for some aesthetic, spiritual, or broad “environmental” value, then the public should be willing to pay for it, just as it pays for other “public goods. ” The costs should not be imposed on whoever is unfortunate enough to hold title to a piece of land coveted by some regulatory bureaucrat for some public purpose concocted by nameless persons elected by no one.
It is time to recognize the property rights are important for both economic and environmental reasons, and must be protected from both government and private malfeasance. Compensating landowners when they’re deprived of the reasonable use of their land will not produce environmental catastrophe. Far from it. In many cases it will eliminate the negative environmental incentives created by the heavy hand of existing government regulations.
Properly understood, property rights to not undermine sound environmental conservation, they are its foundation.
Pennsylvania Landowners’ Association, Inc.
P.O. Box 391
Waterford, PA 16441
Phone: 1.814.796.4023
Fax: 1.814.796.1434
e-mail : info@palandowners.org