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When Legislation Fails

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 THEPENNSYLVANIA LANDOWNERS’ ASSOCIATION, INC.

Pennsylvania Landowners’ Association, Inc.

P.O. Box 391Waterford, PA 16441Phone: 1.814.796.4023Fax: 1.814.796.1434e-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

Who Owns Pennsylvania?

Henry Ingram, Esq.    Article Appears in the Pennsylvania Landowner - December 1992
  Who Owns
Pennsylvania?    

The total land acreage in the fifty states of the United States is about 2,300,000,000 acres.
The Federal Government owns or otherwise controls 623,000,000 acres, about 30 percent of the total. In western states the percentage of federal lands ranges from 28.9 percent (Washington) to 647.8 percent (Alaska). And the public lands in Alaska are over 10 percent of the entire United States total. 60.9 percent of California is federally owned.

These general facts are well recognized and everyone seems to operate comfortably under the assumption that there is nothing particularly troublesome about massive government ownership of land. However, expanded government ownership of this finite natural resource can have very serious consequences. For example, in periods when the anti-development, preservationist philosophy is in vogue politically, there is great pressure to restrict multiple uses of public land even though “multiple use” is the theoretical underpinning of the concept of “public land”. For example, preservationists usually assert that development of minerals such as oil and gas, coal and uranium for energy production should not be allowed on federal lands. The same is true for companies engaged in metal and nonmetal mining of strategic raw materials who face a constant struggle to ensure that the vast mineral reserves located on federal lands remain open to development.

It is a virtual certainty that the new Administration in Washington will be extensively pressured by the environmental lobby to curtail development of mineral resources on federal lands. These anti-development forces will doubtless argue that since the Cold War has been won, the need to extract minerals (or at least have them available for development) has lessened and the time has come for more limited, less intrusive use of federal lands.

You can almost hear the arguments now: “Why expose our vast Wilderness areas to rapacious exploitation by profit driven corporations when there is no longer a compelling national security reason to justify taking such risks with our national enviornment?” More radical, anti-development factions simply argue that land use of any kind is the functional equivalent of pollution and that it should not be permitted at all.

We had a recent manifestation of the “doomsday scenario” an example of the hue and cry which is heard when someone even suggests development on federal lands in Pennsylvania. You would have thought the world was about to end when a supervisor of the Allegheny National Forest mentioned that some coal might be mined in the forest unless the owner was compensated for being prevented from mining. We seem to be developing a national mindset that development of any kind is bad per se, forgetting all the while that over 200 years of economic development and resulting prosperity were in large measure dependant on land use and development, even the intrusive kind so decried by the anti-development/preservationist lobby.

The focus of public policy debate concerning mass government ownership of land seems to be directed primarily towards the Western states. There is a perception that there is much more land “out there” and much less population “pressure” on land use. Also, there does not seem to be quite as much opposition to development, perhaps attributable to the last vestiges of the American frontier spirit in the West and possibly a less strident anti-development bias in the media. But massive government ownership has serious implications not only in the West but also in the Eastern states.

And Pennsylvania provides an interesting case to examine the issue of government ownership and the compelling public policy questions involved.

Pennsylvania covers almost 29,000,000 acres (including “water” areas of almost a million acres) 2. Of that amount federal land comprises only 677,000 acres or just over 2.3 percent. Of that acreage the U.S. Forest Service has 512,000 acres; the National Park Service has 109,000 acres and even our old friend the U.S. Fish and Wildlife Service, owns about 10,000 acres. You might be interested to know that although New York has a larger land mass than Pennsylvania, it has only 234,000 acres of federal land.

The government ownership picture is not complete in Pennsylvania until you also look at the massive holdings of state and local governments. The agencies owning the largest amounts of public land in Pennsylvania are:

Bureau of State Parks……………275, 700
Bureau of Forestry……………..2,085,000
PA Game Commission…………1,355,000
___________________________________
TOTAL………………………….3,715,700

Although PennDOT and other state agencies and facilities, such as hospitals and universities, and county and municipal parks swell the totals, the three agencies just mentioned are the big players in the Government owned land business in Pennsylvania.
Indeed, the acreage owned by these three agencies exceeds the total acreage of all developed land in Pennsylvania by almost 1,000,000 acres! When it is all added up, there is massive government ownership of land in Pennsylvania. Although it is difficult to come up with the precise acreage, well over 20 percent of the Pennsylvania land mass is public land owned by the Government.

What are the public policy implications of this ownership structure and the apparent trend throughout the United States, including Pennsylvania, toward rapid expansion of the amount of acreage owned by the Government? Readers of The Landowner are aware that the National Parks Service is aggressively acquiring large tracts of land both by condemnation and gift. Similarly, in Pennsylvania and elsewhere, conservancy organizations are more and more frequently acquiring land from private owners and then turning around and transferring the lands to government entities such as the Game Commission. 3

At least two important public policy questions are raised by this trend. The first involves the extent to which were previously available for economic development and yes. Even exploitation of natural resources such as timber and minerals, are now going to be “off limits” for use and development by virtue of the implementation of the anti-development/preservationist policies by elected officials and other politicians in response to pressure from the environmental lobby. The transactions documented elsewhere in this issue clearly demonstrate that the transfer of public lands to the government sector is on the upswing.

The second involves the impact of this tread on the real estate tax base in Pennsylvania. Like it or not, ad valorem real estate taxation is the primary source of local tax revenues. Our municipalities and school districts live or die on real estate tax revenues. The State Tax Equalization Board estimates that there is about 78 billion dollars of “assessed value” of taxable real estate in Pennsylvania and about 20 billion dollars of “assessed value” of tax exempt real estate. If transfers to government ownership continue, this ratio will change. As noted at the beginning, real estate is a finite resource. If more and more of it is transferred to the tax exempt entities, whether government agencies or private “charitable” entities such as certain conservancy organizations, and use and development of the land is curtailed, the tax base both in terms of amount of land and value of improvements necessarily has to shrink.

It is clear that local governments can be adversely affected as more and more land goes out of taxation. A large transfer to the government side can lead to a reduction of local government services or an increase in real estate taxes for the owners of the shrinking real estate tax base if services are to be maintained. The negative impact will be compounded if the anti-development, preservationist policies are implemented at the same time and economic development of land is further impeded.

The point to remember is simple. The next time you hear about several hundred or thousand acres of land being transferred from private ownership to the government, particularly for passive or non-intrusive uses such as recreation, under circumstances where development is likely to be severely curtailed, stop and think about the bigger picture. Like so many other “government” activities, too much of a good thing is probably going to be a bad thing.

The source of these figures is the AMC Journal, Volume 78, Number 8, August 1992
2 Statistical abstract of The United States, 1992, Table 344
3 These agencies are proud of their vast holdings and a simple phone call will get you the information down to the last acre.
4 Statistical abstract of the United States 1992, Table 344 – includes urban and built-up areas in units of ten acres or greater.
5 This trend is encouraged by devices such as exclusion from the Pennsylvania Realty Transfer Tax provided for such transfers. See 72.P.S.58102-C
6 Legislative remedies such as the 560 acre Game Commission payment so local taxing bodies in lieu of taxes is probably cold comfort to local governments.

 

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

Who are these People?

Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - March 1992

WHO ARE THESE PEOPLE?
PENNSYLVANIA ENVIRONMENTAL QUALITY BOARD

Much has been written in the Landowner about the “wetlands” issue specifically and about environmental regulation affecting privately owned land in general. An earlier article describes the role of the Pennsylvania Fish Commission in environmental policy and regulation in Pennsylvania. This article focuses on the critical role of the Pennsylvania Environmental Quality Board in wetlands regulation.

The tentacles of wetlands regulation reached, literally, into our backyards and faceless bureaucrats dictate what we can or cannot do with our land. It goes without saying that wetlands protection regulations continue to be a source of concern and controversy in Pennsylvania. Everyone agrees the wetlands are an important ecological resource. There is considerably less agreement concerning the level of protection to be provided for them, particularly for privately owned wetlands.

Readers of the Landowner, however, know the horror stories, either having lived through them personally or having learned about them from friends and neighbors who have been victimized by excessive wetlands protection regulation and enforcement. In the space of a very few years, farming practices and other uses of land, which previously have been entirely lawful and even encouraged and lauded by the government, have somehow become illegal. Citizens engaging in such activities have been subjected not only to civil and criminal sanctions but also to unwarranted attacks in the media by government officials and so-called public-interest groups.

The shackles on land-use resulting from wetlands protection regulation in Pennsylvania are well documented and the problems are beginning to be fully recognized by landowners. Suffice it to say that there exists out there a regulatory maze in which unwary landowners can easily lose his way.

Spearheaded by Pennsylvania Landowners’ Association, efforts at the state and federal level to obtain relief from some of the more onerous requirements are beginning to show results. However, much work still needs to be done because advocates of stringent wetlands protection are not satisfied with either the current status quo or even the “Bush no net loss “policy. Instead, the wetlands lobby urges an “ambitious long-term program of ecological restoration which would take the nation beyond nil Net loss and result in a net gain of 10 million a. of wetlands by 2010.”

These same people also decry the recently proposed modifications of the Federal Wetlands Delineation Manual, arguing the use of the revised manual will allow farmers and developers to put more of their own land to productive use! just a few years ago you could confront such arguments by asking ” what is so wrong about using in developing our land for productive, economically beneficial and non polluting purposes? ” now, landowners are expected to abandon use or development of their own land–with their heads hung in shame for even suggesting and–should they, in efforts to make their own land productive encounter swampy areas.

Many landowners have experienced firsthand the often arrogant and dictatorial manner by which front-line enforcement officials seek to impose wetlands use restrictions. It doesn’t seem to make any difference if these officials are from the Environmental Protection Agency, the Army Corps of Engineers, the Fish and Wildlife Service, the Fish Commission or the D E R. And, as legal counsel and the courts have told us, the requirements that these “enviro-police” are enforcing our official, ” on the books and ” regulations and not something dreamed up by a few rogue bureaucrats who have run amok.

By now, we know that each of the federal and state government agencies mentioned above has a role in the enforcement of wetlands regulations. We all know now that federal agencies have far reaching jurisdiction over wetland which is in addition to that of the D E R and the Fish Commission. We are aware that all the agencies use The Federal Manual when it suits their purposes. Some of us know about Joint Permits, 401 Certifications, Swapbuster exemptions and MOUs. Very few of us, however, know or understand how the regulations the government is enforcing came into being.

For something that has such a dramatic impact on the use of privately-owned land, logic tells us that wetlands protection policy and resulting regulation was established a clearly articulated by a duly elected, legislative representatives of the people; either by the Congress or the General Assembly of Pennsylvania. However, in today’s world, logic does not always apply. It will probably surprise many readers that the word “wetlands” did not appear at all in the federal or Pennsylvania statutes which are the asserted authority for the Draconian wetlands enforcement actions and severely and use restrictions with which we are all becoming so familiar. The entire wetlands protection scheme and the burgeoning wetlands protection bureaucracy was spawned by regulations with scant involvement by elected legislators. The Pennsylvania wetlands regulations are ultimately the work and responsibility of the Environmental Quality Board ( “EQB”), the rule making arm of D E R.
By now, most all of us know with a congressman Ridge along with many of his colleagues in Congress, have jumped into the wetlands issue in a big way and he is one of the leading advocates for federal legislative reform. Similarly, we have heard that state senator Brightbill is advocating and has introduced reform legislation for Pennsylvania. Both pieces of proposed legislation would assure protection of truly valuable and important wetlands but would also provide some relief from the excess of the present regulatory scheme.

We also know that in Pennsylvania a broad spectrum of organizations representing landowners, farmers, timbermen, home builders, manufacturers and mineral developers, has formed a coalition to attempt to bring more balance into wetlands regulatory policy. It is encouraging that some legislators and officials are taking a hard look at wetlands policy.

However despite all the new and cry over the wetlands issue from all corners of Pennsylvania, the reform legislation and has not been enacted, and the wetlands lobby is pressing for more protection and restrictions on the use of development of privately-owned land. And despite all the controversy, Pennsylvania’s wetlands regulations have not been relaxed but have been made more onerous.

How can this be you might ask, particularly since organizations such as Pennsylvania Landowners ‘ Association seem to have made great progress in educating large segments of the public and numerous legislators about the problems be countered by ordinary Pennsylvanians and confronted by excessive wetlands regulation. A large part of the answer in Pennsylvania can be attributed to what is known as the environmental “rulemaking process” i.e. the mechanism for developing and in acting D E R ‘ s environmental regulations are formulated, adopted and promulgated by the Environmental Quality Board. (“EQB”). Stated another way, the EQB makes the rules and regulations which are administered and enforced by D E R and which the Fish Commission can also in force.

Regarding wetlands regulations specifically, on October 12th, 1991, despite the public controversy and debate the EQB went ahead and adopted substantial amendments to Chapter 105 of D E R’s regulations covering wetlands, little concerned that the Senate of Pennsylvania was addressing a wide variety of issues raised by a host of affected landowners and the Wetlands Coalition and the fact that similar reform effort was under way in Congress. The point is that for whatever reasons the EQB rulemaking process seems to exist in something of a vacuum, at least on some issues, insulated to a large degree from everyday reality at apparently oblivious to issues raised in the well publicized and often acrimonious public debate over wetlands in Pennsylvania and elsewhere.

Most all of us have heard of the EQB. For example, readers of the landowners will recall that our friends from the Fish Commission in fact have two votes on the EQB. However, I doubt that more than a handful of us can name any of the EQB’s members or know how they came to their positions. A few of us are familiar with the makeup, structure, and operating procedures of the EQB. But how many of us truly understand the role, power and importance of the EQB in Pennsylvania?

As will be discussed later, about the only good news appears to be that we can identify the names of the individuals statutorily responsible for environmental policies and regulations, and specifically those pertaining to wetlands in this Commonwealth. The bad news is that, as a practical matter, ordinary citizens have virtually no effective recourse if they disagree with specific policies or regulations established by the EQB.

On the table A, The act of the General Assembly which established the composition or “make-up” of the EQB is reproduced with the names of the present EQB members. Careful readers will note that only the four legislator members hold their position on EQB by virtue of having been elected to legislative office by the citizens of Pennsylvania; even those legislators and all of the other you EQB members are political appointees in one way or another.

Readers should also note been altered it can be appointed for each board member and eight members (just over one-third of the 21 seats on the EQB) can constitute a quorum to conduct business i.e. to adopt a regulation. A cynic might suggest that a very small group of unelected, largely unknown and unaccountable individuals’ wheel tremendous power in the field of an environmental policy and might even question the wisdom of such a system.

It seemed clear from the makeup of the EQB that the General Assembly wish to have Pennsylvania environmental policy and regulations formulated in a process which numerous diverse interests including the is advanced and represented by important executive branch departments, independent commissions, and the legislative branch of private interests, are taken into account. An idealist would also assume that the EQB was to be independent and the liberty of and the choices and decisions would be made on the basis of full discussion of options, complete understanding of technical issues and the balancing of competing values. In reality, the EQB is not all that independent and there are serious questions about its understanding of technical issues and balance. Although it may not be readily apparent, for all practical purposes, the Secretary of D E R in all probability, and surely the Governor and Secretary together, can control the EQB. In the vast great majority of rulemaking situations, D E R staff proposes a particular set of regulations and the governor’s appointee, the Secretary of D E R, as both Secretary and Chairman of the EQB; setting controls the agenda for rulemaking.

Moreover, because of the technical complexity of modern environmental regulations and the other demands on the time of individual EQB members they must rely heavily on D E R staff for summaries, opinions and recommendations when considering proposed regulations. D E R ‘ s control the flow of information and the EQB’s Operating procedure, coupled with the inherent loyalty of the cabinet and other political appointees to the Governor, virtually guarantees that the ” administration has the votes ” on the EQB and that the EQB will adopt whatever policy regulation the this Governor wants.

In the context of wetlands protection regulation, readers of the landowners are aware that Governor Casey is dead set against compensation for wetlands regulatory takings, vigorously supports “no net loss” and advocates increased protection of wetlands.

The EQB rulemaking process is quasi-legislative and involves what is known as public notice and comment. Each proposed regulation or set of regulations is “advertised” in the Pennsylvania Bulletin and interested persons are given the opportunity to file written comments on what is being proposed. Based on the nature of the particular regulation, the EQB mayor may not conduct a public hearing on the proposal. As a hearing is held is typically attended by one or just a few EQB members or alternates. Because the process is quasi-legislative (not adjudicatory), no cross-examination of persons testifying is permitted in such persons are usually limited to the amount of time allotted for their testimony.

It is generally a understood the EQB voting members usually did not read the often voluminous written comments which are submitted and rarely hear the “live” testimony.
Instead, the D R staff prepares a “commented response ” document summarizing particular comments in providing the staff’s reaction to the comments. This procedure may separate some of the week from the chaff but it also provides a filter which allows D R to control the flow of information to board members and to put a D R “spent” on the commented technical data submitted by commentors.

It is recognized that EQB members from the CAC usually have the most in-depth familiarity with the D E R regulatory proposals and that the CAC itself has thoroughly reviewed them.

Except in limited circumstances, persons wishing to have input in the formulation of given D R regulation are not permitted to speak at EQB voting meetings at which proposed regulations are discussed and theoretically debated, although true debate is rare.

Oddly, although almost everyone involved is a public servant or suppose represents some components of the public interest, a direct communication or contacts with members on pending regulatory issues is apparently considered to be unseemly and the effectiveness of lobbying individual EQB members is questionable in many instances.

It is enough here to say that the EQB and Varity enormous influence over the day-to-day affairs of the citizens of Pennsylvania. Questions naturally rises to whether the EQB rulemaking process provides a full airing of all sides of particular regulatory issues and whether it is sufficiently responsive to the rights and interests of the public and individual citizens, which can be dramatically affected by D E R’s regulations.

My own view is that what might be called “pro-environmental /anti-development” interests have better access to and influence in the Pennsylvania Environmental rulemaking process than do other interest groups and citizens. This is due in part, understandably, to the nature of the D E R itself as primarily an environmental protection agency. It has no stake particular interest in farming, commerce, land and mineral development or manufacturing. In fact, the pro-environmentalist-anti-development advocates are singing to the choir when they talk to D E R. Pro-development advocates seem to be viewed as minor irritants to whom some “lip-service” ( public comments?) must be paid in the rulemaking process. This, coupled with sometimes appears to be myopic attitude on the part of some EQB members and the highly pro-environmentalist posture of the Casey Administration, creates the perception and perhaps the reality that the EQB is stacked against pro-development interests.

To the extent that this state of affairs is of concern to citizens interested in the development and use of land and other natural resources in Pennsylvania, it must be recognized that things are not going to change unless opposing voices are raised in heard. The regulated community creates the jobs, produces the food and energy, builds houses, pays most of the taxes and elects the governor this and legislators. In the public interest surely requires that these interests be accounted for in the environmental rulemaking process by more than lip service.

A good place to start is with the members of the EQB. If you think they’re not reading your comments in hearing your testimony public hearings, you should tell them directly. You pay majority of them and the people who appoint them. Are they listening?

 

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

What is the Sierra Club?

Henry Ingram, Esq.    Article Appears in the Pennsylvania Landowner - November 1994
  What is the
SIERRA CLUB
Doing in Center County?

I can’t help it but every time I hear the name “Sierra Club,” my mind conjures up images of old John Muir, backpackers in plaid shirts, giant redwoods, Yosemite Park and way out West initiatives such as the California Desert Protection Bill (where about six million acres of land are to be forever “protected” against multiple use or even minimal development). You tend to forget that the Sierra Club has 550,000 members, a staff of 380, a $43 million+ annual budget and a Political Action this which dished out over $600,000 in political contributions in 1992. According to the editors of Outside Magazine, the Sierra Club is really wired into congressman George Miller (D-CA), Chairman of the House this Resources Committee and, now that Mo Udall is gone, the Grand Environmental Pooh-bah in Congress (Al Gore may at one time have argued with that characterization of Mr. Miller but now Mr. Gore is only Vice-President!). Although Miller is extremely powerful and definitely on the radical side of and enviro-regulation, it is good to have him around just because if he is for something, it’s almost a guarantee that landowners should be against it and you don’t have to waste a lot of time reading draft legislation or watching the debates on C-SPAN to figure out if you should be for or against.

I was jarred back to reality the other day when I read that the Sierra Club had endorsed Mark Singel for Governor. To Mr. Singel’s possible credit, it was not a ringing endorsement but an endorsement nonetheless and I haven’t heard that support from the Sierra Club was being rejected. I try to overcome the sort of knee-jerk reaction I experience what I learned about some new proposal Congressman Miller but have to admit it did get me to thinking.

First, I recalled that the Sierra Club was one of the ring-leaders in the attempt, organize secretively; to counter the Pennsylvania Wise-Use Movement (read that to mean PLA and other like-minded organizations) which was reported to you in the April 1994 Landowner. Although we haven’t heard too much about Anti-Wise Use Movement recently, the self-proclaimed leaders of the Pennsylvania environmental community, including the Sierra Club, were at it again at the First Pennsylvania environmental Congress held on October 2nd and 3rd at the state capitol building in Harrisburg. The purpose of that get-together was declared as “Create a statewide environmental agenda for the 1990’s”. Although it is not atypical for the self-proclaimed leaders of the environmental community to establish such overblown goals, you have to wonder about their timing. We’re almost halfway through the 1990’s and they’re just getting around to “Setting the agenda.” It is probably a good thing we don’t get all the leadership, planning and vision that supporters of organizations like the Sierra Club pay for.

The only other time I read about the Sierra Club recently was in a provocative article by Gregg Easterbrook, a contributing editor to Newsweek and The Atlantic Monthly, in the September 11th York Times Sunday Magazine under the headline “Forget PCBs, radon, Alar.” To me, the article provides some true perspective on, for lack of a better term, “environmentalism” today. I urge everyone who is interested in the subject to read it and I will ask PLA to make copies available to readers of the Landowner upon request. Because of deadline pressures for this issue, only excerpts of the article are quoted here but I believe the eloquently speak volumes about the modern environmental movement without the need for further elaborations by me.

The next time someone mentions the Sierra Club, maybe my mind won’t conjure up an image of old John Muir.

1. The March 1994 issue which are good friend Don Nunneman was kind enough to send me and from which a obtained the statistical information about the Sierra Club
2. Getting just a little pompous, aren’t they?
Throughout the world, many more people die each year from filthy air and dirty water than from asbestos, dioxin, the electromagnetic radiation, nuclear wastes, PCBs, pesticide residues in ultraviolet rays–the sorts of ecological issues that obsess Western environmentalists. Problems like dioxin and nuclear wastes are real enough and must be dealt with. But Western public consciousness and environmental groups continue to focus on such issues all but ignoring millions of annual deaths from polluted air and water.

Dangerous air levels have become almost unknown in the West, but 1.3 billion people in the developing world live in zones of dangerously unsafe air. According to the World Health Organization, last year 4 million 3rd-world children under the age of 5 died from acute respiratory disease, brought on in most cases by air pollution. This is about as many people of all ages who died of all causes that year in the United States and the European Union combined.

In the Third World, polluted air is more than matched by polluted water. Some 1 billion people lack access to drinking water that meets the crudest safety standards. Unicef reports that 3.8 million developing-world children under age 5 died last year from diarrheal diseases caused mostly by impure drinking water. In the West, diarrheal deaths are practically unknown; in the developing world, diarrhea kills far more people than cancer.

Yet such problems to not seem to be on the priority lists of Western environmentalists.

A large faction within the environmental movement concentrates on the comparatively minor ecological problems of developed nations in order to support the view that Western materialism is the root of all ecological malevolence. The low point of such thinking was reached at the Earth Summit in Rio de Janeiro in 1992. There, institutional environmental groups got the attention of the world and its heads of state, but what message did they choose to proclaim? That global warming is a horror. The sole environmental area in which the United States is the leading malefactor is carbon dioxide emission, which contributes to the greenhouse effect; in virtually every other ecological category, America is the world leader in progress.

To make Rio a fashionably negative event about Western guilt-tripping and America-bashing, the prospect of global warming was put above the urgent loss of lives in the Third World from water and air pollution. Rio concluded with Western leaders agreeing to devote billions of dollars to controlling global warming, while not lifting a finger for the 7.8 million poor children who die each year mainly from what they drink and breathe

Western environmental thinking has great difficulty coming to terms with such realities. That third-world Economists would call propane and kerosene “Clean fuels,” and speak longingly of the day when their countries are wholly electrified like the West, horrifies Western environmentalists, or enviros, as they’re known in Washington. According to ecological orthodoxy, fossil fuels are hideous and central electric generation promotes an artificial greenhouse effect.

What developing nations need to free their populations from death by extreme air pollution is hydroelectric dams, advanced petroleum refining installations, high-efficiency power plants for the clean combustion of coal. But Western environmental lobbies oppose nearly all new central energy production facilities for the developing world, especially hydroelectric plants. Greenpeace, the natural Resources Defense Council, the Sierra Club and other major environmental advocacy groups are pressuring Washington, Tokyo, Paris, London, Bonn and the World Bank not to support the Three Georges and Xiaolangdi dams in China; the Narmada River dams in India; Bio-Bio River dams in Chile, and power dams proposed for Malawi, Pakistan and elsewhere. In most cases the campaigns have succeeded. The World Bank, for example, recently withdrew from the Narmada project.

Given the crisis in basic environmental needs among the world’s disenfranchised, Western environmentalists and governments would do well to shift their focus from the ecological problems of the developed world. A dollar spent protecting the environment will accomplish 10 times as much in the Third World as in the first.

 

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

Who Sent In The Clowns

In a recent issue of the Landowner, I pointed out the gradual erosion of ordinary citizens individual economic freedom which flows from heavier and heavier taxes. Simply stated, the more money the government takes from you in taxes and spends or give to somebody else, the less economic freedom you have. You have to work harder or one or both to maintain your standard of living and this government taxing and spending increases, individual freedom to influence the economy is reduced. As taxes increase, whether impose directly on individuals or which have their taxes increased, individuals have less money to spend. Take a simple example. You may want (and may be saving) to buy a river-front lots on which to build a cabin you and your family and friends can use and enjoy. If Uncle Sam (or Uncle Bob) takes more money from you in the form of increased taxes, you may be deprived entirely of the opportunity to spend your hard-earned money for what you want. What is worse yet is that Uncle Sam (or Uncle Bob) may decide to acquire, with taxpayers’ money, that river front lot (and a lot more) for himself. And you can bet today’s world that Uncle Sam (or Uncle Bob) probably won’t be making their riverfront property available for your use and benefit. More likely he will be saying that the property can be used for anything.

It doesn’t take an economist or a philosopher to recognize the compound-involved here. You’re out the tax money and collectively, we’ve all lost a little more freedom to choose and influence how all economic decisions are to be made. The ultimate result always is that the more Government takes in taxes the less freedom you have.
I recently suggested in these pages (somewhat optimistically it turns out) that Government may be reaching the outer limits of our collective tolerance to more taxes and the resulting expansion of government control over our lives. I warned at that time that an assault on another of our fundamental freedoms-this one more subtle-was occurring. This is the individual’s freedom to own, it use, buy and sell land.

I may have been wrong about our tax tolerance. If the polls cited by the new Administration are accurate, the perception (at least on the part of President Clinton) is that we’re willing to shoulder in even greater tax burden. Admittedly, he doesn’t call it “Taxes.” he calls it “Shared sacrifice” or “Contribution to” to the nation’s well-being. Whatever you call it, the effect is the same. You don’t get the riverfront cabin and the government buys the riverfront for itself, pays for someone else’s health insurance, British and a boatload of illegal aliens or does whatever else you (through your elected representatives) allow it to do.

Although I may have underestimated our collective tolerance to even more taxes, let’s say we will decide at some point that enough is enough. We won’t tolerate more direct taxes unless we get something we want. Let’s also assume that senators Wofford and Specter and our representatives in Congress agree that enough is enough and refuse to vote for more taxes (any smiles forming on your faces?), and we stop the direct assault on our individual economic freedoms. Can we simply go back to normal lives and resume our efforts to save enough for the cabin of the river? A resounding NO is the answer!

As I warned earlier, the institutionalization of the anti-development/preservationist philosophy in our government manifested by intrusive environmental regulations continues unabated and our freedom to own and use land is under attack. This phenomenon can also be viewed as a “hidden tax” being levied by Government.

We all know that the value of privately-owned land diminishes as the uses to which it may be put to are restricted. In the hands of the ordinary citizen, a river-front lot is not so valuable if he can’t build a cabin. The oil and gas deposit or gravel bed is worthless if you can’t recover it. The “back forty” that can’t be used unless drainage is re-established becomes a liability rather than an asset if some agency objects to drainage. We may recognize that our economic freedom is being eroded by taxes but we must also recognize that Government, by imposing substantial restrictions on land-use, is also increasing costs to ordinary citizens and landowners. In the typical situation, the ordinary citizen can’t pass the increased costs on to someone else (like utilities and producers of consumer goods can) and so he has to absorb them. In a very real sense, when government restricts your freedom to use your land, it is for effect imposing a new tax, albeit an indirect tax, by taking from you the amount by which the value of your land is diminished by the particular government regulation or action involved. Economists may refer to this effect as “Ran to” love for all practical purposes it is a tax in this form of taxation usually falls into the category of “Taxation without representation”.

Just a few examples of the kinds of increased costs which result in indirect taxation will illustrate my point.
First, let’s look at something called the Conservation Easement Program (C E P). This program is being implemented by the Farmers Home Administration (F M H A) under a 1987 Memorandum of Understanding (M O U) with the U.S. Fish and Wildlife Service (F.W. S.), tenuously based on an Executive Order issued by President Jimmy Carter in 1977. (As an aside, keep your guard up any time regulatory agencies do business by M O U’s. It usually means either they do not have clear regulatory or statutory authority to do what they’re doing or are trying to avoid public scrutiny of it.) Under the C E P, whenever the F M H A forecloses on a loan made on an agricultural property, it allows the F.W. S to encumber the property with what is euphemistically referred to as a “Conservation easement”, which is really a perpetual set of stringent land-use restrictions on the property including:
A. No dwellings, barns, outbuildings or other structures shall be built within the easement area.
B. The vegetation or hydrology of the described easement area will not be altered in any way or by any means or activity on the property conveyed by this deed, or property owned or under the control of the Landowner, including: (1) cutting or mowing; (2) cultivation; (3) grazing; (4) harvesting would products; (5) burning; (6) placing of refuse, wastes, sewage, or other debris; (7) draining, dredging, channeling, filling, discing, pumping, diking, impounding and related activities, or (8) diverting or affecting the natural flow of service or underground waters into, within, and out of the easement area.
C. “… The Landowner shall be responsible for compliance with all federal, state and local law for the control noxious or other undesirable plants on the easement areas. ”

In conservation easements under the C E P the federal government is given authority “At its sole discretion” to manage the easement area within the following rights:

A. the right of ingress and egress…

B. The right to install, operate and maintain structures for the purpose of reestablishing, protecting, and enhancing wetlands functional values including taking of construction material to and from said sites.

C. the right to establish vegetation…

D. the right to manipulate vegetation, typography and hydrology on the easement area’s 3 diking, Pompeian, water management, excavating, Island construction, burning, cutting, pesticide application, fertilizing, and other appropriate practices.
E. The right to conduct predatory management activities.
F. The right to construct fences …
G. The right to prohibit or regulate hunting or fishing …
H. The right to exclude Landowner and/or public entry …

These conservation easements are forever.
You don’t have to be an economist, engineer or lawyer to understand if the F W S imposes a conservation easement, a former owner of farm property seeking to redeem after foreclosure will require substantially less than he had before the half FmHA for closed (and that won’t affect the redemption price) and the land will be encumbered going forward. If the original owner can’t redeem the property, in many instances the conservation easement will so burden the property that it won’t be purchased by another farmer. The property then moves from private ownership to, in all likelihood, unproductive government ownership. Henry lamb of the Environmental conservation organization reports that the F W S has recommended over 1650 easements affecting more then 322,500 acres and estimates, if current trends continue, a cost to taxpayers (that’s us folks exclamation) of $700 million with 1,400,000 acres of land taken out of productive use.

The C E P was not voted on by Congress or subjected to any public scrutiny informal rulemaking procedures (which are intended to give notice to the public and potentially affected parties an opportunity to comment on and shape regulatory proposals). Rather, it apparently was cooked up by the anti-development/preservationist bureaucrats in the two agencies and foisted off on the farming community and general public without debate or discussion. The net effect of the C E P is more restrictions on land use, more land grabbing by government and more cost to ordinary citizens.

The CEP is a good example of “surreptitious” regulation which imposes a form of indirect taxation. Let me turn now to another example of government “Activity” which imposes additional costs on the ordinary citizen in Landowner. This one we will refer to as “Delayed damages.” some money may be familiar with the concept of personal injury litigation. A court may award a successful plaintiff an extra amount over the awards for pain and suffering in property damage to compensate the injured party for the delay between the time of the injury and actual payment of the award by the defendant. The law recognizes that and authorizes it delayed damages in that kind of situation. It appears to me that ordinary citizens and landowners almost always suffer “delay damages” when they get caught up in government regulatory programs.

Take the well publicized power transmission line proposed by two major electric utilities; the Duquesne Light Company and General Public Utilities, which is known as the “DQE/GPU project.” the DQE/GPU project involves the construction of a high-voltage power line from Shippingport Borough west of Pittsburgh to Londonderry near Harrisburg, a distance of approximately 225 miles. The object is to transmit coal-fired electric power generated in western Pennsylvania for use in the east. It is believed that the new line will create hundreds of construction, mining and related jobs, boost the Pennsylvania economy and provide cheaper electricity on the Eastern seaboard.
A vocal, if unquantified, opposition to the DQE/GPU project has developed. Some of the opposition is based on health and environmental concerns arising from the construction and operation of the power line. Some comes from the no growth, anti-development/preservationist movement which often, it appears, opposes almost everything. Son is based, legitimately, on concerns of landowners and residents who live with the in or near the mile long, and 2,000 foot wide right-of-way “corridor” in which the power line ultimately will be located on a 200 foot wide easement.

The DQE/GPU project power line is subject to regulatory jurisdiction of the Pennsylvania Public utility Commission (P U C) which must determine if the project is in the “Public interest.” if it is, the utilities can pass the costs of construction through to electric ratepayers (again, that’s us folks). As part of the regulatory process, the PUC held numerous hearings and the utilities conducted an elaborate public education campaign to address an attempt to assuage the concerns referred to above. Originally, the PUC found the project to be in the public interest and it seemed that the project would move to the next phase, the identification of the precise location of the foot right of way within the foot corridor and the right of way acquisition.

It was to be during this phase the Landowners (hopefully with assistance from their legal advisers) in the corridor would be able to assess accurately how they would be affected. No matter what side you take on the myriad of issues raised by the project, at least during this phase it was thought, the direct impact on affected landowners could be identified and assessed and available remedies pursued.

Unfortunately for everyone involved, except importuning politicians and seemingly feckless PUC bureaucrats, the project has been delayed while the PUC conducts further investigations. Most of us have seen be full-page newspaper ads taken out by Pittsburgh-based corporate and business leaders criticizing the delay. There’s no question that these leaders believe the project is good for business in Pennsylvania and should go forward. But now the project is stalled and its future is clouded with uncertainty.

Little, however, is being said for the ordinary citizens and landowners in the corridor who will bear the actual brunt of the project and may have their properties “Taken” for the right-of-way. Delay clearly harms them. Take our original hypothetical of the guy who wants to buy the river-front lot and build the cabin and assume his site is within the corridor. What does he do now? What about the developer who has acquired a large tract of land to build a new townhouse complex before the corridor was laid out and now finds that his property is in the corridor. Can he proceed? Probably not until he is certain that the project will (or will not) go forward. In the meantime, interest and real estate tax payments must continue. Similarly, do you rotate a crop into or pasture livestock into a possible right-of-way area? The point is that the bureaucratically imposed delay is causing “delay damages” to landowners. This is another cost of government and to me this cost falls clearly within the category of “indirect taxation.” These indirect taxes are imposed because politicians and bureaucrats generally like to avoid making, accepting responsibility for, and following through on tough decisions. The typical reaction of these fellows when faced with a tough choice is to stall and look for some way to deflect responsibility and avoid decisions they are charged by law to make. That’s a “Fact of life,” you may think to yourself, but also think about what government imposed delay in implementing private economic decisions costs the private sector.

As a final illustration of abusive government action the costs us money, let’s focus some light on a new, anti-development/preservationist scheme devised by the Pennsylvania Fish Commission (our old friends!). In a deal between D E R and the Fish Commission-perhaps by M O U (and I warned you about M O U s),-D E R imposes “Special conditions” on all mining permits potentially affecting streams classified as sensitive streams by the Fish Commission. You can take it for me that “Special conditions” means a higher cost of doing business in may be so high that the business can’t be done at all. But what are “Sensitive streams?” as you might have guessed, they are whenever the Fish Commission says they are. Streams designated as “Sensitive” by the Fish Commission unilaterally and arbitrarily, I would say, on a case-by-case basis. A D E R official put it this way:
” We met with the Pennsylvania Fish Commission to develop the list [of sensitive streams] that you requested. It turned out to be more difficult proposition that we had expected. The Fish Commission cannot develop a sensitive stream list because much of the information that goes into designating a stream as sensitive is not collected until the Fish Commission conducts their field reviews in connection with the surface mine permit applications. If they find a stream that contains a native trout population and there is already some impact occurring in that stream in the vicinity of the proposed surface mine permit, they classify that section of the stream and sensitive. The impact could be sedimentation from other mine sites in the area, sedimentation from logging, or any other existing condition that is already creating stress for the native trout population.”

“C’mon” you say, “Government can’t behave like this. Haven’t the courts of Pennsylvania said that requirements like this (i.e. requirements which impose new substantive burdens on the regulated community across the board) must go through the formal rulemaking process before they are enforced by an agency?” You’re right the courts have said that but DER and the Fish Commission must think that there “Noble cause” put them above and beyond the law and that such court imposed restrictions apply only to us “ordinary citizens.” Implementation of this type of program costs plenty. It imposes indirect taxation in the form of higher costs of doing business and inflicts “delay damages” on natural resource developers all while the Fish Commission tinkers around out in the field.

In all three examples, ordinary citizens and landowners have to “Pick up the tab.” I hope you will agree with me that something should be done about this. You might think “What can I do about it?” the answer is we must stop letting the Clowns run the circus! We have to speak-up and put an end to abusive government before it takes any more of our money and land. We have to get organized and get involved. The best place to start is with these legislators we continue to elect and reelect. Tell them to get the Clowns out of management!

 

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

Take A Look At The Map

Henry Ingram, Esq.    Article Appears in the Pennsylvania Landowner - June 1993
  Take a Look at the Map    

After several years, Pennsylvania landowners are coming to realize that “environmental regulation” involves not just pollution prevention. In the early days environmental regulation, the thrust was to control pollution of our streams and Air and limit the indiscriminate use and disposal of toxic materials and other substances which might create health hazards. The direct cost of “First generation” pollution-control measures was assigned to the private sector industries whose activities created the potential pollution. These costs by and large could be passed on to consumers of goods and products manufactured by these industries.

Gradually, as water discharges and smokestack emissions were “Cleaned up,” attention turned to clean-up of polluted sites (land areas adversely affected by past industrial or waste disposal activities). The cost of subsequent initiatives to clean-up or, to use a fancy word, “remediate” polluted sites turned out to be enormous and both private industry capital and our tax dollars were tapped to fund the clean-up costs.

The trend that has emerged in the last decade is to control the natural environment in such a way that no pollution or environmental harm will occur. An unfortunate corollary has also emerged–that mere land use and development itself is the functional equivalent of environmental harm.

The first truly burdensome example of this trend in Pennsylvania came with wetlands protection enforcement at both the state and federal level beginning about five years ago. Readers of the Landowner are already well familiar with the excesses’ in the wetlands protection programs and all levels of the bureaucracy. To briefly reiterate a long story; about 75% of all wetlands are located on private property and about 100% of the wetlands regulators don’t want to see any wetlands, however created or important, disturbed in any way. Lip service is paid to the “Theoretical” possibility that an ordinary citizen could get a permit to fill a wetland but for all practical purposes only large, well-financed developers, who can afford the tremendous costs involved, have any chance to secure “official” authorization to disturb a wetland of any size.

Now, landowners must recognize that other modern “environmental” programs are intended to and in fact have the same effect on privately owned lands as wetlands preservation does. The terms used in the titles of the Acts creating these programs disguise their coverage and impact on ordinary citizens. For example, implementation of the Endangered Species Act of 1973, The Wild and Scenic Rivers Act of 1968, the Federal Eastern Wilderness Act, the Historic Sites Act (protecting “Natural” landmarks) and even the Coastal Zone Management Act, can all affect dramatically private property rights in Pennsylvania. These new preservationist initiatives are not limited to Glacial National Park or some isolated river in Maine. It is going on in your backyards.

What is happening is the regulatory programs under these Federal Acts are extending their “No disturbances” tentacles throughout rural and otherwise undeveloped areas of Pennsylvania. If some species is declared “Endangered” by a federal bureaucrat and a particular species can (not does) live on or near your land, you are affected and your right to use your land as you choose is endangered, perhaps even more than that bureaucrats newly identified species.

The same is true if you own land in or near a Wild and Scenic River corridor or which contains a natural landmark your rights are diminished.

Many of you have learned that “Rails to Trails” doesn’t just mean a few hikers in the real backwoods areas where a railroad abandons a line. It can mean serious intrusions on the peace and tranquility of your communities. We have also learned that Congress was all too willing to “suspend” your reversionary interest in the abandoned railroad rights-of-way to pander to recreationists who in turn were all too willing to take something (your rights) for nothing. The same is true for these other preservation programs.

On the preservationist front, Pennsylvania environmental bureaucrats usually march in lockstep with their federal counterparts (although Pennsylvania is often the head of the federal beat).

We have parallel programs and all these trendy, new areas of anti-development regulation and our bureaucrats often seem to be watering at the mouth to do their federal big brothers one better. In terms of getting ahead of the beat, even the Feds haven’t come up with Special Protection Watershed designations which can eliminate all development in a given area. These are state-of-the-art anti development/preservationist devices.

And what you have to be sure to recognize is that all these programs are directed at private property, not just public lands.

Our elected officials have given land-use control bureaucrats broad powers over your property and the hordes of preservation police roaming around these days is just that–enforcement officers with real police powers. Readers of the Landowner know that violations of these regulations can lead to serious fines and jail terms which seem to be, and often are, more stringent than those imposed on drug pushers, drive-by shooters and stock-fraud con men. Do you ever get the feeling the “system” is out-of-balance?

These programs are based on the political philosophy which would intentionally restrict one of our most fundamental freedoms and ultimately erodes the underpinnings of the free enterprise system. Nevertheless, you must also recognize there are probably no evil motives involved here–by and large persons inside and outside of government who subscribe to the anti-development/preservationist philosophy believe they are acting in the best interests of everyone. Although they won’t admit it, they just have the view that they can make better choices about the use and development of private property than the ordinary citizens who own it can.

As layer after layer of land use regulation-wearing a cloth of Environmental Protection-is added, the resulting diminuation in land value-referred to previously in the Landowner as a hidden tax-has the effect of redistributing wealth in this country-just as surely as taking your wealth by a direct tax does.

If the government takes money from you and me in taxes and gives it to somebody else-say in the form of government subsidized health care, we know what is going on. We recognize this for what it is-a transfer payment which has become the hallmark of the modern welfare state. We also recognize, if we think about it, the question of what percentage of our wealth the government should transfer as a political question (most of us would agree that as a general moral or ethical proposition, taking something from the strong and wealthy and giving it to the weak and poor is not wrong).

However, already burdened with increasingly higher taxes, high crime rates, violence in our streets and the bloated bureaucracy which spends a large amount of its time cramming down our throats its ideas (about which there is no true consensus.) as to how people should live their lives and order their own affairs, we now wake up to find ourselves shackled by intrusive preservation regulations which are impairing our fundamental freedom to own and use private property.

Hopefully there is some reason to believe that ordinary citizens still have the ability to take a stand and draw the line if things get too bad. For example, Jimmy Carter was turned out of office apparently when a majority of people got fed up with a high reading on the misery index. Somehow it translated into a revolt against a profligate tax and spend government and inside-the-beltway arrogance. After a decade or so of Reaganomics, we have sent ourselves back into the tax and spend cycle and more intrusive government (although in fairness to the electorate it would have been hard for the ordinary Joes among us to figure out that Candidate Clinton’s remonstrates about “cutting taxes and the deficit” really meant increasing both!)

I make the point here because burgeoning land-use regulations and preservationist programs must be understood for what they are. They impose hidden taxes ordinary citizens, effect transfers of private wealth and shackle individual freedom by eliminating choices among uses to which privately-owned land may be put. Forget about right and wrong. It is extremely difficult to attack, morally or ethically, a particular government imposed choice; for example, choosing to “Save” spotted owl habitat rather than preserving timber industry jobs. Or why should a Landowner give up the right to use his land to protect habitat just so scientists can learn a little bit more about how organisms become different species-one of “usual” justifications for “protecting” an endangered species. The trouble is that both choices may be good, just as, viewed alone, increasing the level of health care for people who can’t pay is good. The problem at the present moment is that the choices being made are being made by persons (elected officials) who have apparently tested the political wind and decided it is blowing in favor of the anti-development/preservationist philosophy, just as sometimes in the past it has blown in favor of the welfare state/transfer payment to philosophy. Apparently in today’s political climate, the selection between two “Good” choices is not going to favor landowners and others who have to earn a living by putting their land to use and for whom the free enterprise system is the machine which enables them to earn those livings and take care of their families. In the land-use area the winds continue to blow the wrong way for the Landowner. At the moment the voices of those who subscribe to anti-development, preservationist philosophy are the loudest and property rights are in peril. You can’t expect to get anywhere on moral or ethical grounds. This is a political battle. It is a situation with the ordinary citizen must stand up and be counted. The line must be drawn.

1. Because there has been “Selective” enforcement of wetlands regulations, particularly against individuals who are perceived is challenging the “System,” and plain old “Looking the other way,” unauthorized wetlands fills abound in Pennsylvania. Hopefully some of the “Looking the other way” is motivated by recognition of the unfairness of wetlands preservation enforcement on private land.
2. In coming months PLA will be holding information meetings and graphically identifying on a map areas of Pennsylvania which are affected by anti development, preservationist land-use control regulations.

 

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

Something’s Wrong Here

Henry Ingram, Esq.    Article Appears in the Pennsylvania Landowner - April 1994
  Something’s Wrong Here    

In this issue of the Landowner, readers will see a letter purported to have been sent to the “Leaders” of the so-called “Pennsylvania Environmental/Conservation Community” about a closed-door meeting apparently organized and coordinated by a group of environmental organizations and Ed Perry of the U.S. Fish and Wildlife service. The purpose of the meeting was to discuss a program to counter the grass-roots momentum of groups like the “Wise Use” movement like PLA. Now I can truly be said the PLA has arrived. This relatively small, under-funded volunteer organization has captured the attention of the somewhat pompously self-declared “Leaders” of the Pennsylvania Environmental/conservation community and obviously aroused their ire.

When you think about some of what the sponsors of the closed-door meeting said in their letter (i.e. “PLA wants to eliminate public control of state parks, forests and game lands”), you begin to sense these “leaders” have about as much commitment to accuracy in speech as they seem to have for private property rights,–almost none. At least PLA opens its meetings to the public and encourages discussion and debate on the issues. You wonder why these “leaders” need to meet behind closed doors. This secrecy stuff sounds just a bit juvenile, maybe even. Do they really think PLA will try to “disrupt” their discussions? I doubt it but it seems obvious that the PLA message is getting through to the people, touching sensitive chords and making some groups nervous.

The anti-development/preservationist movement has grown accustomed to getting its way and receiving generally favorable responses to most of its agenda from the general public and certainly from the media. They want to keep it that way. The formation of what appears to be a new “coalition” with a secret agenda does, however, raise serious issues for Pennsylvania landowners. Apparently the Environmental/Conservation Community now wants to try to restrict the flow of information to the public and foreclose open debate on its regulatory and legislative agenda. The combative, “closed-door,” tone of its letter signals that this new coalition is really seeking to foreclose public discourse on the issues and stifle the advocates of private property and landowners rights. These people have had it pretty much all their way for a long time and, understandably, they want that to continue.

You might think to yourself: “That’s okay, they’re entitled to their views and we’re entitled to ours. What’s the big deal if they get together in State College for a day to discuss the Wise Use Movement?” I’ll tell you what it is. The big deal is that these people can truly put a lot of money where their mouths are! In simple terms, if they want to clamp down groups like PLA, they probably have the power to do it.

The power comes from two sources. First, the preservationist message is, at the moment, politically correct. Until groups like PLA mobilized and began to get their message out to the people, the anti-development/preservationists had a free ride and rein with legislators, politicians and the media. This is precisely why these people are trying to “counter” the PLA message and momentum at the grass-roots level.

The second source of the power is money. The “Green machine” has the “Green!” Three of the sponsors of the closed-door meeting are giant, national preservationist organizations or their state chapters. These organizations have huge budgets, highly paid staffs, with lawyers, media “spin doctors” and “scientists” who crank out the preservationist message and local chapters who deliver it. The chart listed below shows what you’re up against.

Readers of the Landowner should be familiar with these large, national environmental organizations and their resources and influence. These organizations are clearly aligned against the interests of most individual landowners and private party rights in general.

The involvement of Pennsylvania Environment Council (”P E C”) in this enterprise is quite another story. Like the National sponsors of the meeting, P E C is financially powerful and politically influential. It is also a tax advantaged, 501 (c) (3) organization.
P E C has a staff of 16, three offices in Pennsylvania and revenues of over $845,000 last year. PEC’s board and list of benefactors, patrons and sponsors reads like a Who’s Who of prominent Pennsylvanians. The roster of PEC’s financial contributors is truly an honor roll of Pennsylvania business and commerce. What really makes this story different is that unlike some of the other sponsoring organizations, PEC, since its formation and deservedly, has always been perceived as a voice of reason and balance in environmental and land-use policy issues in Pennsylvania. For that reason, the council is highly respected and influential throughout the state. As noted, as a result of its efforts, PEC has attracted impressive support from the corporate community. As an example of its evenhandedness, PEC Co-sponsored with PLA a constructive public education program on wetlands where all viewpoints on the issues were freely presented and openly discussed.

At least until now, PEC has been entitled to its reputation among landowners as a neutral organization which follows its stated philosophy; “To listen to and involve all interests in developing environmental policy recommendations.” PEC certainly qualifies as a leader of the environmental community but it came as a real surprise to see assume such a clearly adversarial posture. It would be unfortunate indeed for Pennsylvania if PEC’s participation in this new statewide “effort to counter the … momentum of groups like PLA” signals an end to its pivotal role in Pennsylvania as a leading mediator and environmental policy issues and consensus builder and announces the beginning of a new advocacy role in alliance with the rest of the environmental advocacy organizations, many of which are viewed by large segments of the public as radical. Landowners and ordinary citizens in Pennsylvania simply don’t have the resources to match up against well bankrolled and politically powerful organizations like those that sponsored the meeting, let alone a real powerhouse like PEC.

This leads me to a final thought. I can understand why the business community has supported organizations like PEC. Can someone explain to me why the business community generously supports some of these environmental advocacy organizations? It bothers me that many organizations which receive significant corporate support subscribe enthusiastically to the anti-development/preservationist philosophy. If we don’t allow reasonable use and development of our land and resources, how are we going to keep the economic machine in Pennsylvania running? To be sure, there are tax breaks. There is a recognition by business of the need for clean air and water and a healthy environment. A “go along to get along” philosophy often makes “practical” sense in dealings with environmental regulators. Maybe the “pro-growth” and “balance in environmental regulation” message is just not getting through. Whatever the reason, the simple fact of the matter is that big corporate dollars continue to find their way into the coffers of the anti-growth, anti-development, anti-private property, environmental advocacy organizations who turn around and pressure government at all levels to take control of, or simply take, your land. To me, it’s as plain as the nose on your face and just plain wrong.

1. It is really laughable when PLA opponents suggest the PLA is a front for and funded by anti-environment, big business. As many of PLA’s members know, PLA survives (just barely) because of the truly remarkable, volunteer efforts of its members, directors and staff and the generosity of certain individuals. Would that PLA had the financial support from the business community that some anti-development/preservationist organizations do!
2. C., trashing the economy-how run away environmentalism is wrecking America, free enterprise Press, 1993.
3. These companies are among those listed as “Contributors” in PECs 1993 activity Report: Air Products and Chemicals, Allegheny Ludlum, ARCO Chemical, Aristech Chemical, AT&T, Bell of Pennsylvania, Chevron U.S.A., CONRAIL CoreStates Bank, Duquesne Light, Equitable Resources, this Eagle, Inc., Hershey Foods, Land Corp., Lukens Steel, Mellon Bank, and a Merck, Sharp and Dohune Inc., P A Power and Light, Pennsylvania Electric Co., Peoples Natural Gas, PNC Bank, PPG, Procter and Gamble, Rockwell International Rohm and Hass, Scott Paper Co., Sun Refinishing, U G I Corp. ., Unisys Corp., United Penn Bank, USX Corp., Washington St., Westinghouse Electric.
4. The anti-development/preservationist organizations we’re talking about typically are tax exempt, and operate, themselves or through affiliates, as the 301 (c) (3) organizations within the meaning of the tax laws so that contributions to them are deductible just as if you are giving to your Church, the Red Cross or the Little Sisters of the Poor. That’s right, large corporations, either by directly or through controlled, tax-exempt foundations can generously support these tax-exempt organizations, take charitable contribution tax deductions and you, the Landowner take on the chin!

 

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

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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