PLA Reversal Win!
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - Summer 2003
Pennsylvania Landowners Win Reversal
In U.S. Court Of Appeals
Important “Rails-to-Trails” Case
Report by Hank Ingram
based on information furnished
by W.C. Smith, Esq.
In the case of Lucas, et al v.Bethel Township and Allegheny Valley Land Trust, where the district court in Pittsburgh had held that the issue of abandonment could only be tried before the ICC, and not in the District Court or in a Court of Common Pleas, the United States Court of Appeals for the Third Circuit (hereafter “Third Circuit”) in Philadelphia, reversed. Now, it will not be necessary to try the question of abandonment of railroad right-of-way property issues only in Washington, D.C.
The Lucas case has decided even more important issues concerning the granting of “rail banking” or approval of “interim trail use” by the trail groups under the federal Rails to Trails Act.
The trail advocates and three related cases had contended that that it is not necessary to comply with the regulations set forth in 49 C.F.R. 115 2.29 adopted for the Rails to Trails Act. The National Trail Conservancy has recommended to the trail groups that they argue that it is not necessary to comply with 49 C.F.R. 115 2.29, that it is not necessary for the Railroad to agree with the trail groups for trail use, that it is not necessary to file an application with the I.C.C. or the S.T.B. , and enter into a prior agreement to comply with the regulations set forth governing the Rail to Trail Act. They urged the trail groups that compliance is only “ministerial” and the good intentions later expressed after expiration of STB jurisdiction, which purported to comply with the intent and/or spirit of the Act, are sufficient and that such later actions are sufficient to bar reversion under the Rails to Trails Act even after jurisdiction of the ICC or STB has expired. This would have completely eviscerated the limited procedural safeguard Congress afforded owners of reversionary interests in right-of-way property under the Rails-to-Trails Act and regulations.
In his opinion, Judge Roth, of the Third Circuit held that where “The ICC was never asked to intervene and “suspend” abandonment by certifying an interim trail use under the National Trail Act, … the Act’s provisions are inapplicable to this case.”
Judge Roth’s Opinion states: “In order to preserve the right of way, however, the STB requires a sponsor wishing to maintain a trail to file certain documentation describing the site, indicating the users’ willingness to assume full responsibility for management, legal liability, and taxes, acknowledging that the users’ continuing obligation to meet the responsibilities. 49 C.F.R. 115 2.29(a)… if the abandonment is authorized under sec.308, the railroad must agree to negotiate a rail banking agreement before the STB will issue a certificate of interim (or CITU) to prevent the right of way from reverting under state property law.
49 C.F.R. 115 2.29…. the AVLT never met these requirements by filing with the ICC or STB, and Conrail refused to join the AVLT in filing for railbanking with the ICC. Thus, there is no basis for arguing that the STB has jurisdiction over this matter under the provisions of the National Trail Act” and local courts, applying local property law, had their jurisdiction restored.
“In this case … regulatory requirements for an interim trail use have not been met. The request for interim trail use has never been filed with the ICC or the STB and neither agency has authorized an interim use … nor could the AVLT meet these requirements because Conrail did not agree to join the AVLT in filing for railbanking … thus, the ICC has not authorized the AVLT to conduct any trail use that would preclude finding of abandonment of the Allegheny Secondary Track under state law. ”
DECISION OF PENNSYLVANIA SUPREME COURT IN CONFLICT WITH THIRD CIRCUIT AND U.S. SUPREME COURT
While the Lucas Federal case was under consideration in the Third Circuit, the Pennsylvania Supreme Court was deliberating the case of Buffalo Township Jones, et al., in which the cou pick one rt decided that an application to the ICC for rail banking was not necessary in order for the railbanking of a trail in Butler County.
There, Buffalo Township had withdrawn an untimely trail use request, submitted after the ICC requested further information concerning abandonment consumption and Conrail had refused to join them in the application, and the rails and ties had been sold and removed. The Supreme Court of Pennsylvania issued an order and opinion, holding that the requirements of the Federal Regulations,49 C.F.R. 115 2.29 were only “ministerial” and it was not necessary for Buffalo Township to comply to qualify for this “rail banking. ”
A request for re-argument of that decision had been filed on behalf of landowners, Jones, et al. By William Claney Smith,Esq. of Pittsburgh, who was also representing Lucas,et al. in the Third Circuit. Smith, of course, advised the Supreme Court of Pennsylvania of the Third Circuit’s totally contrary and presumably controlling decision on the exact same question of federal law. Nevertheless, without explanation, the Pennsylvania Supreme Court denied the request for re-argument.
PENNSYLVANIA SUPREME COURT APPEARS TO HAVE VIOLATED THE SUPREMECY CLAUSE OF THE UNITED STATES
LANDOWNERS REQUEST REVIEW BY UNITED STATES SUPREME COURT
The U.S. Constitution in article VI, clause 2, provides :
” This Constitution, and the laws of the United States which shall be made in pursuance thereof shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby anything in the Constitution or Laws of any State to the contrary notwithstanding. ”
The plain language of the Third Circuit decision established that ” rail banking is to be initiated in compliance with the requirements of 49 C.F.R. 115 2.29. by filing a timely application, for re-argument, veteran Attorney William Claney Smith, Esq., having brought this to the attention of the Pennsylvania Supreme Court, while the case was in deliberation, concluded that the Pennsylvania Supreme Court violated the Supremacy Clause when it denied a re-hearing after being notified of the controlling Federal law. To obtain review, a Petition for of Centiorari was filed in the U.S. Supreme Court on June 9, 2003, and is under consideration. Justice Saylor and Justice Nigro dissented, stating that the issue of abandonment should be decided by jury.
It must be noted that membership on the Pennsylvania Supreme Court is an elected office. That is why it is important for Pennsylvania landowners to be cognizant of the philosophy of Judges when they’re up for election or retention.
the rail to trail case in Armstrong County is on appeal before the Superior Court of Pennsylvania on the same issue of jurisdiction and noncompliance with the requirement to file an application for rail banking before the ICC. Motions have also been filed before the Court of Common Pleas, for summary judgment. The Superior Court is aware of the decision before the Third Circuit’s decision. It will be interesting to see the Superior Court complies with the decision of the Third Circuit. It is the position of landowners that the admitted facts establish abandonment and reversion of the right of way property to them. It is up to our Courts to protect their property rights.
The Landowner, including several PLA members and their attorney, W.C. Smith, are to be congratulated for taking the stand for their rights and breaking new ground in the Rails-to-Trails litigation. Good luck to them as the battle continues .
PLA filed an Amicus Brief in support of the Landowners Petition for Writ Certiorari
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
Rails to Trails
Protect Your Property Rights!
Take a Stand for Your Land!
Henry Ingram, Esq.
Article Appears in the Pennsylvania Landowner - May 1996
Rails-To-Trails
The Greening Goes On
Until very recently, Pennsylvania law was clear about what happens to a railroad right-of-way when a railroad company terminates service on a particular rail line “abandons” the right-of-way. In virtually all cases, with very few “Ands, ifs or buts,” the land reverted to landowner across whose property the railroad right-of-way passed. While the right-of-way was being used for railroad purpose, the landowner had what is known as a “reversionary interest. ” Upon abandonment, the reversionary interest ripened into or vested and the right-of-way or easement ended. The landowner was free to use and enjoy the former right-of-way property as he saw fit.
In 1983, Congress, in passing the federal Rails-To-Trails Act, perpetuated one of the more transparent sleights of hand in our history. It legislated a “suspension” of these reversionary interests held by landowners everywhere and made the rights-of-way available to the public for “interim trail use. ” Railroad rights-of-way were being abandoned in droves by failing or downsizing railroads and, spurred on by environmentalist/recreationist advocacy groups, the redistributionists then in Congress seized this opportunity to take these private property interests and to make them available at no cost to strangers, without providing compensation to the landowners whose rights were being trampled. For long time, most citizens believed that the Fifth Amendment to the Constitution protected them against takings, particularly when what was taken-the use of the right-of-way property-was given to other citizens-the trail users.
The sleight-of-hand artists in Congress must have really had some concerns that the purported public purpose for this rip-off would not hold up under constitutional scrutiny because, to buttress the purported public purpose, they concocted a gigantic fiction- the national rail bank- into which landowners reversionary interests would be deposited and held in public trust for future use by railroads to support the national rail system. Said our congressmen, the reversionary rights were merely being “suspended,” not taken. “By the way folks, while waiting for this need to use the rights-of-way for railroad use to arise in the future-during this period of “suspension,” we’ll let qualified trail users use the rights-of-way for recreational trail purposes without paying a nickel. ” If you read the Congressional record closely enough you can see the Congress really wasn’t concerned or even serious about holding onto old railroad rights-of-way for future rail use, but they were concerned that the reversionary owners of the rights-of-way weren’t knuckling under to demands to allow the rights-of-way to be used for public trails.
To further obfuscate the situation, Congress gave regulatory authority over what came to be known as the “Trail conversion’s” (bureaucrats “hide-the-ball” language for taking from Peter and giving to Paul) to the Interstate Commerce Commission (ICC) which already regulated abandonment of rail service. The ICC fawningly obliged Congress by developing a one-sided, unfair and almost incomprehensible regulatory procedure to rubber-stamp trail conversions. Suffice it to say the landowners whose interests were being “suspended,” in the old days, we’d say taken, weren’t given much opportunity to participate in the ICC abandonment proceeding and the first time many learned of the loss of their rights was, literally in many cases, when they read about a new trail in the newspaper or had a trail user throw a beer can into their backyards.
Needless to say, a few landowners quickly smelled a rat and began to challenge rails-to-trails conversions, often invoking the Fifth amendment. Ultimately, a case Presault V. ICC, reached the Supreme Court of the United States. In 1990, the Supreme court brushed aside takings claims by saying that since there was a “valid” public purpose for the taking identified by Congress (i.e. storing the abandoned rights-of-way for future railroad use is the equivalent of maintaining a strategic reserve of buggy whips in case Model T technology doesn’t pan out) and since the Tucker Act provides a compensation remedy for the landowner, the Is Rails-to-Trails Act passed constitutional muster and did not work a taking of the Presaults’ property. All the Presalts had to do was present their case to the U.S. Court of Claims in Washington, D.C. The compensation case started shortly after the Supreme Court’s decision and it is still in court.
By now you should be beginning to catch the draft of where this is going. After a trial, the Court of Claims, in one of the most facile opinions you could find, held that there was no taking and therefore no compensation was due. The Presaults appealed and various judges and panels of the Court of Appeals ruled against the Presaults. Recently, this awful result was vacated by other judges of the Court of Appeals in yet another “decision” is expected shortly. Hopefully some sanity will be restored as the appellate review process plays out.
At this point, you have to stop and remember what the Constitution says. It says “Nor shall private property be taken for public use without just compensation. ” it doesn’t say “Property can be taken by the government for some cockeyed, fictional public purpose so long as the owner and his lawyers are given the right to engage in expensive, time-consuming litigation in remote courts with the owner having burden to prove the taking to unelected judges who are given the presuming the Congress knows what it is doing and deferring to the formulations of agency bureaucrats. ” the Fifth Amendment is supposed to be a vital part of the Bill of rights-of protection against the government-not an invitation to sue or be sued. As it stands now, ordinary citizens, including owners of reversionary interests in railroad rights-of-way, are pretty well priced out of the Fifth Amendment litigation market.
Ok folks, that’s federal Rails-To-Trails for you. Viewed from the perspective of the rural landowner who has abandoned railroad rights-of-way on his property, it looks like all three branches of the federal government are collaborating to eliminate his property rights.
Needless to say, state and local governments were quick to follow the federal lead and began to craft their own programs and activities to take advantage of something all politicians love, the opportunity to create a perceived public benefit-a new recreational facility, a trail, without having to pay for it by raising local taxes. There would be no land acquisition costs because they could use abandoned rights-of-way for free and get state or federal funding if they needed operating money.
“Funding you say. I thought money was tight and we couldn’t have any more budget buster programs. In fact, isn’t Tom Ridge trying to increase gas taxes again so PennDOT can fix our roads?” The creativity of politicians in finding ways spend our money beggars the imagination. Although many of us thought the country was coming to its senses on deficit spending and out-of-control government programs-remember the 1994 congressional elections-tax and spend programs already in place began to pump big money into Rails-to-Trails. We all know about the federal gas tax-28 cents a gallon. But how many of us know how much money is raised by the federal gas tax or where it goes. I can tell you that under the Intermodal Surface Transportation Act of 1991, smirkingly referred to by bureaucrats as “ISTEA,” 10% goes to transportation “enhancements” which can and does mean trail conversions. Now you have it, all those bikers riding through your backyards are part of the national transportation system, just like all those abandoned rights-of-way that are piling up a National Rail Bank for future railroad use. The way it works is this-The United States Department of Transportation parcels the ISTEA enhancement money out to the states and the states dish it out to local governments and trail promotion groups. This is big money and it’s your money. Do we really want to keep paying federal gas taxes to promote the destruction of private propert rights?
On the local scene, isn’t it bad enough that Pennsylvania may have to raise its gas tax just to repair and maintain our roads, highways and bridges. Why wouldnt our political leaders lobby congress to use Pennsylvania’s share of the ISTEA enhancement money for roads and bridges and hold off on Trails until the roads and bridges are fixed. Figuratively speaking, in Pennsylvania were going out for dinner and a show plus a couple of beers before we pay the rent and the grocer. It’s supposed to be the other way around, isn’t it? We all recognize that recreational amenities are nice, add to the quality of life and may even be essential, but we need to make politicians get their priorities in order. Let’s try to close this federal cookie jar. If you think about it, the rollback of President Clinton’s gas tax increase could be, in the newspeak of tax and spend government, “paid for” out of our ISTEA transportation “enhancement” money. I think transportation is enhanced when you ride down a well maintained Interstate with a little more change jingling in your pockets, don’t you? Why don’t we let our legislators know how we feel? Let’s not be intimidated by elitist trail promoters who are being financed with your money with the cooperation of local politicians who may not even know what is really going on. Some would say that if they do know, they shouldn’t be in office.
Sadly, for many readers of the Landowner something will begin to click. This ISTEA scam has a familiar odor. Then it should dawn on you. ISTEA smells like key 93, Pennsylvania’s own open cookie jar. And you can’t accuse our state legislators of really hiding that this too well. If you read the fine print, trails are by definition “all over” Key ‘93 and realty transfer tax money diverted annually to the Keystone Park and Recreation Fund is being used for trail promotion and development.
In a more perfect world (one in which the roads are fixed and taxes are lower) no one will object to a little “amenities” spending. But now, we simply can’t afford dinner out and a show until we pay the rent. It’s that simple.
As with any myopically crafted government program which runs roughshod over individuals and property rights, sooner or later, someone will have to take a stand. It’s happening in Rails-to-Trails. Landowners have been successful in challenging various aspects of the Rails-to-Trails structure. In Michigan, a United States Court of Appeals just couldn’t swallow the rail bank fiction and held that under state common law doctrine and abandon right of way could not be converted to trail use because it was impossible to use the right-of-way for a railroad in the future. In 1995, a Court of Appeals in Washington imposed some time limits on railroads and trail conversion promoters so that owners of reversionary interests in the right-of-way could not be kept in limbo, all the time with a cloud on the title to their land, while the ICC abandonment process dawdled on. Groups opposing trails are springing up throughout Country, including here in Pennsylvania. PLA has worked with such groups in Butler and Armstrong counties and litigation is pending in several courts.
Unfortunately, and it pains me to say this as a lawyer who frequently is asked to litigate, litigation is were the Government and the trail promoters want you. It is their home field in the field isn’t level. In most cases, it is a few a budding landowners against the Government and well funded, often Government financed, trail promotion groups. Just recall the Presault case discussed earlier. Very few of us have the resources or time to take on a battle of that magnitude. The fact is that most cases, with the way the deck is stacked, the alliance of Government and trail promoters, paid for by your tax dollars, will ultimately grind landowners with the audacity to resist trail development into the dust.
I know many of you voted for Tom Ridge and were confident that his views on property rights, views which have been eloquently expressed on these pages when he was a Congressman and Candidate for Governor, would lead to greater protection of property rights in Pennsylvania. But how many of you know that Mr. Ridge is throwing the full weight of his administration behind the Rails-to-Trails movement Pennsylvania. In collaboration with the Rails-to-Trails Conservancy Mr. Ridge, acting through his new Department of Conservation and Natural Resources, is planning to convene the Governor’s Conference on Greenways and Trails next February. It is clear that this conference is designed to promote trail development and Rails-to-Trails conversions. It will be a “How to do it” not a “Should we do it?” conference. All you need to do is look at the persons appointed to the Program Committee and the fact that 10 state agencies are being invited to participate on the Steering Committee to recognize the the Governor is forging an alliance with all the major trail promotion players and throwing the full weight of his administration behind the effort to move Pennsylvania into the trail business “big time. ” This is a clear public policy choice by this administration and it does not bode well for property rights in the commonwealth.
Obviously, our Governor has the right to lead us in the direction he thinks we should go. And, viewed in a vacuum, this concept of recreational trails is not a bad thing per se as long as the rights of individual citizens are not trample and they are compensated when their property is taken for the trail amenity. But think about. Is this and the direction we thought Tom would take us? I can understand why some Pennsylvanians are getting just a little nervous. How many of you readers will be invited to the Governors Conference?
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
One of the Reasons It Never Ends
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - June 1992
One of the Reasons It Never Ends
We all know that environmental regulations can have dramatic and often devastating impacts on landowners and land use and development. Story after story is told about some poor citizen who has become ensnarled in a regulatory problem which defies solution on any rational basis.
I have often heard the words “stunned,” “astonished” and “outraged” used by people to describe the abusive conduct or arrogant attitude of an environmental regulator. I am sure readers of these pages are often struck with the thought “can this really be happening in Pennsylvania or America?”
When hearing about someone losing the right to use his land or being hit with an excessive penalty a normal reaction is to think “Something is really wrong here. I’ll call my legislator and ask him to look into the situation.” How many times has the response been “I’ve never hear of such a program. I’ll look into it and get back to you” or “It couldn’t be, that just doesn’t sound right” When the legislator does get back to you, how many times have you heard: “I don’t agree with it but my hands are tied, it’s a DER regulation.”
The normal reaction at this point is “Well if we don’t like it and he doesn’t like it and he is our Representative, why doesn’t he do something about it?” Readers of The Landowner will also think to themselves “Isn’t that just what PLA convinced Tom Ridge to do on the wetlands issue and aren’t Tom and Jimmy Hayes championing our cause in Congress?” The readers are right but should not be lulled into a false sense of security or go back to sleep. The outrage about some new horror story should not be forgotten because of this one example of something really being done about excessive or abusive environmental regulations.
Instead, readers should stay awake and alert. First, wetlands reform legislation embodied in H.R. 1330 has not passed. Powerful and influential interests oppose it and the ultimate resolution of the current Congressional debate about wetlands is in doubt. Much work remains to be done and supports of this legislation must keep the pressure on. Readers should also keep in mind that the battle on the wetlands issue has been raging for at least three years and the outcome is still uncertain. Although organizations such as PLA have energized hundreds of thousands of ordinary citizens and focused public attention on the wetlands issue, anti-development, preservationist forces, although “slowed down” to some extent on wetlands, haven’t given up and are pressing their agenda on other fronts.
For example, most readers are familiar with well publicized legislative and regulatory initiatives, long advocated by the preservationist lobby, such as The Endangered Species Act, The Wild and Scenic Rivers Preservation Act and the Rails to Trails Act. all the regulatory programs being implemented and even expanded under these federal statutes carry the potential to impose more restrictions on the use of private property and prohibit development of more land and other natural resources.
Similar legislative and regulatory initiatives are emerging continually at the state and even the local government level. For example, the Pennsylvania Department of Environmental Resources is developing regulations that would allow anti-development preservationists to petition the Environmental Quality Board to have areas in Pennsylvania declared off-limits for extraction of sand and gravel and quarrying operations. Additionally, the Fish Commission continues to press to have Pennsylvania streams designated as Exceptional Value Waters just so, under DER policies, no permits will be issued for any kind of development. Apple local level, anti-development, preservationist groups are seeking to create “environmental compacts” or conservation districts to add another layer of bureaucracy, and enviro-regulation and to shackle the use of private property.
It seems that at almost every turn we’ve run into some new “environmental” a regulatory proposal which affects us as landowners. In the majority of situations, the land use or activity be limited or prohibited is not causing pollution or harming the natural environment. More often than not, the initiative or proposal seems to be based on someone’s (usually a stranger’s) preference or whim as to how our property should be used or developed.
Much of this anti-development/ preservationist activity is encouraged and nurtured by organizations which ordinary citizens and landowners may recognize by name but know little about. Without getting into questions of their motivation, philosophy or even their political agenda, the purpose here is to focus the reader’s attention on some vital facts and information about certain aspects of these organizations.
What follows are “capsule” profiles of five environmental organizations (among literally scores of others which have essentially the same preservationist philosophy) which are considered by many observers to be the most powerful and effective. These organizations are generally considered by legislators and regulators to be in the mainstream, responsible and qualified to participate in the public debate on environmental issues. To put it succinctly, they’re often strident voices are listen to public policy decision-makers.
It is enough to say here that the reason for existence of these organizations is to design, initiate, promote, advocate and implement the anti-development, preservationist agenda in the United States. They are powerful, effective, influential and well funded. What is alarming is that, generally speaking, large segments of the public don’t fully understand their methods of operation or the extent of their influence.
Any person who believes in limited government should be very concerned about the influence and agenda of these organizations. There is a real risk and the organizations such as PLA and other advocates of individuals’ rights to use and develop private property will be overwhelmed. Obviously, advocate of landowners Rights are currently being outspent and out shouted by the anti-development preservationist lobby. There may be very serious mismatch in the public debate which would form decision-making on critical environmental issues and policy.
In the circumstances, readers should abandon any thought of going back to sleep. Instead, stay alert and be prepared to recognize the anti-development initiatives and defend yourself against further restrictions on the use of your property. Above all, please continue and expand your support of organizations such as PLA which focus and advocate your interests and amplify the voices of all Pennsylvania landowners.
1. Information regarding these organizations and appeared in Coal Voice. The January/February 1992 Volume 15:1, and is reproduced here with permission of its publisher, the National Coal association. The reader’s attention is specifically directed to the numbers: the budget, staff and membership of each organization.
2. The national organizations profiled here have branches, sister entities and affiliates in Pennsylvania, all with members and separate funding.
Henry Ingram has practiced natural resources and environmental law in Pennsylvania for over 20 years. He is a member of Bachman Ingersoll Law firm in with John Ward, represents the Association and legal matters.
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
NY Times
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - January 1995
It’s A Good Thing Not Everyone Reads the New York Times on Tuesdays!
Many landowners have felt the sting of wetlands preservation enforcement on their property and PLA members are familiar with the legal nightmares experienced by Bob Brace and Ed McDanniels in Pennsylvania and by Bill Ellen, Ocie Mills and Ted and Nancy Cline in other states. We have learned that approximately 80% of the wetlands in Pennsylvania are located on privately owned lands. Now, by virtue of extreme, preservationist regulations imposed by unelected, largely unaccountable bureaucrats and enforced by aggressive, often dictatorial enviro-police, this private property has been dedicated, in effect, to public use. As a practical matter, these bureaucrats are telling you that you can’t use your property as you wish or even as your family always has. Most ordinary citizens have had real trouble believing what they’re hearing. It just doesn’t seem to make any sense.
Many of us can remember the days when draining a swamp to make land productive or to eliminate mosquitoes was thought to be a good thing. Indeed, our same government which todays committed to preserving all wetlands (remember President Clinton supports NO NET LOSS and wants to create even more wetlands!), had a much different approach in the past. In the 1920’s, ’30’s, ’40’s and 50’s, the Federal Government promoted and subsidized the conversion of millions of acres of “wet” lands for agricultural uses. Today converting wetland to productive land can be a crime.
This is not my point, although perhaps it should be, but the recent election results should graphically remind us that we have the constitutionally guaranteed right to change something the Government does to us that we don’t like. There is nothing about the current governmental preference for swamps, bogs and marshes and the seemingly ridiculous but currently accepted notion that wetlands don’t have to be wet - that can’t be reversed. You have often heard that the word “wetlands” was not even mentioned in the federal Clean Water Act when all this preservation frenzy started. It wasn’t in the Pennsylvania Clean streams law either. No, we’re not talking about “elected legislator made law” - this is “unelected bureaucrat made law.” Nor are wetlands protected or made sacrosanct by the Constitution. They’re not like speech or liberty or even property. Wetlands on private property now have to be preserved because regulations made it that way but remember, regulations and government policy can be changed. Remember the elections. Suffice it to say here that, at least in theory, wetlands preservation regulations could be rolled back. Indeed, this is precisely what Tom Ridge and Jimmy Hayes were trying to do with HR 1330. It will be interesting to see what happens in the next Congress. Let’s hope that the new majority has the guts to do something about the problem.
Did you ever stop and think about how we got to where we are on wetlands preservation? How did we get to the point where NO NET LOSS became a national battle cry and creating new farmland or eliminating mosquito breeding grounds became an environmental crime? At least part of the answer is that pubic opinion shifted. Somehow the dark, negative image of swamps and bogs changed and now they are considered by many to be, ecologically speaking, the greatest thing since sliced bread. And now does public opinion shift? One of the ways it shifts is that “opinion makers” begin to shift it. Now I’m getting to the New York Times.
Recently the Times’ Tuesday “Environment” Section has been “reporting” on the threatening impacts of “habitat fragmentation” on a variety of wild plants and animals. It makes interesting, if scary, reading if you can cut through some of the jargon and newspeak. For example, on September 27, Times environmental writer William K. Stevens reported:
The best adapted and most dominant species of wild plants and animals may be, paradoxically, the most vulnerable to long-term extinction as a result of habitat loss, say ecologists in the United States and Britain.
But since the species to not actually go extinct for 50 to 500 years after the fragmentation of their habitat dooms them, the researchers report, natural areas may now look healthier than they really are.
The good news, the scientists say, is that the long interval between habitat fragmentation and the ultimate death of species allows time to rescue many or most of them through habitat restoration.
Habitat loss and fragmentation brought about by human activity are advancing apace around the world. Because extinctions occur generations after fragmentation takes place, the scientists reported in the British journal Nature this month, they constitute an ecological “debt” that will come due in the future unless it is repaid through restoration.
To really understand the story, you have to know that “habitat fragmentation” means normal “use or development of the land.” To the Ivory Tower ecologist, changing land use for development or, in the ecological context, downgrading it from its natural state to “settlement” which means “residential or agricultural use.” The thrust of the entire story is that mankind owes a debt to Nature to restore these habitats.
On October 18, Times writer Carol Yoon followed up with a story on the vanishing species on Staten Island, one of New York City’s five boroughs. This story reports on the findings of researchers concerning the Staten Island “ecology.”
What they found was that even on Staten Island, were there is still much that is green and were 10 percent of the land is protected, no type of plant is safe, with everything from trees to shrubs and vines, delicate flowering orchids, even roadside weeds getting hit. “We really couldn’t piece out any group of invulnerable species,” said Dr. Robinson.
Dr. Handel explained that they also found no invulnerable habitat, with everything from marshes to dry, upland woods and meadows losing comparable numbers of species.
“That was a frightening finding,” said Dr. Handel. “What hit me was that we have had an enormous emphasis on preserving certain habitat types like the wetlands, and this study has shown me that we’ve reached a stage of habitat degradation were attention has to be leveled against all habitat types and we can’t be naïve to that.”
When you think about it, these stories, without expression or even any suggestion that there are positive or beneficial aspects of land use and development or “fragmentation” as the restoration ecologists call it, advocate the notion that all “habitats” should be protected and all developed land should be restored to its natural state, not just wetlands! The preservationists shoved their noses under the tent with wetlands and now they’re looking to take over whole oasis!
I don’t have to tell you that the Times is considered to be the most influential paper in the country. Many of our inside-the-Beltway friends read it every day including Tuesdays. These people are being influenced and opinions are being formed. “Everything should be preserved and previously ‘settled habitats’ [read that previously developed land] should be restored.”
If you think I’m kidding about a trend toward preservation oriented public opinion, just remember the Erie County Natural Heritage Inventory in its original form. Or think about the recommendations of the Forestry Work Group of the Non-Point Source Subcommittee of the Chesapeake Bay Foundation (the name of this organization ranks right up there with the Noxious Weed Control Committee and have to confess that I couldn’t resist mentioning it!). Simply stated, the Forestry Group doesn’t want anyone cutting down any trees along stream banks in the entire Chesapeake Bay Watershed which encompasses about a third of Pennsylvania. They dress it up a little but that’s what they’re talking about. They did find the oasis, didn’t they?
Landowners are well advised to keep an eye on their own “settlements.” There are serious people out who truly believe that we owe a debt to restore everything and opinion makers and changers like the Times pass it along with even a mention of the other side of the story.
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
Not In My Backyard
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - December 1993
Not In My Backyard…
Don’t Bet On It!
” Sites of exceptional County significance merritt quick, strong and complete protection.” Remember those words!
Now that harvest is in, the election is over and holidays upon us we can relax a little get back to enjoying the good life. There are, however, a couple of minor problems. Instead of middle-class tax relief and reduction of the budget deficit we’re getting an increase in each. “Oh well,” we think, “Clinton is apparently no worse than Bush.” Bush promised no new taxes and deficit reduction while Clinton promised tax relief and deficit reduction. I guess we’ve reached a point where we should take all these campaign promises like grains of salt.
As a matter of fact, campaign promises are something like wetlands reform promises from our friends in Congress and the General Assembly. Frankly, I get a little tired of hearing about Tom Ridge’s H.R. 1330. He has ridden that horse pretty hard. And remember Senators Fisher and Brightbill who introduced wetlands reform bills in the state Senate, and State Rep Fargo who introduced legislation in the House. These legislator friends of ours all introduced bills that would give landowners some relief on excessive wetlands protection regulation … if they would ever pass. But that’s the big if! It is one thing to introduce a bill. It is quite another to develop and implement a strategy to get the bill passed. In the cold, harsh world of political reality, a promise to introduce legislation, particularly by a member of the minority party, is probably illusory.
The problem is not that these legislators are not friends of landowners and supporters of property rights; it’s just that in the present political climate they can’t deliver. We have to learn to avoid succumbing to that comfortable feeling that seems to overcome us every time some nagging regulatory problem is “addressed” by having one of our friends introduce legislation. As long as we’re in the minority or perceive to be, real relief on reform just isn’t going to happen.
The way it is now, when the bill is introduced, we simply assume the problem is being taken care of and we go back to sleep or to the good life but, unfortunately, that is a mistake. Inside the Beltway, or even inside the County Planning Office, the wheels continue to spin and churn out ever more restrictive and intrusive environmental regulation.
On wetlands, Representative Gary Studds (D-MA) has introduced legislation, H. R. 3465, which is purported to implement President Clinton’s much ballyhooed wetlands plan. Without getting into all the details, neither the Clinton plan nor the Studds bill provides any significant relief to landowners. Tom Ridges H.R. 1330 wasn’t perfect but did at least offer some real relief, if it ever passed. And wait until the anti-development, preservationist advocates in the Clinton Administration and Congress shift into high gear on H.R. 3465 and other environmental legislation. That should really keep you on your toes.
For example, the principal environmental focus in Congress next year will be on the Endangered Species Act (”E S A”), the ESA brought us the Spotted Owl controversy and devastation of the timber industry in the Northwest. Readers of The Landowner know that the ESA touched down in a big way in Pennsylvania with the designation of the two or three mussels and French Creek as Endangered. The preservation plan for these mussels hasn’t been unveiled yet but all of you who live near French Creek should stay on the alert for that. The preservation plan is what eliminated all the timber industry jobs in the Northwest.
To deflect all the negative criticism and political fallout surrounding E S A enforcement, Secretary of Interior Bruce Babbitt has espoused the National biological Survey (“NBS “), “Holistic,” “Macro-management” approach to preserving biodiversity, as the best means of protecting all species. The NBS will involve having hordes of United States Fish and Wildlife Service (”F.W. S.”) biologists and now all of the countryside to inventory and assess entire eco-systems, in theory so wise decisions can be made on which and how habitats and species should be given ESA protection. Representative Studds also introduced this legislation, H.R. 1845. Happily some of it more interesting features have been softened in the House as is reported elsewhere in this issue of The Landowner. Secretary Babbitt is quoted in The New York Times as believing that existing laws give enough authority to protect the habitats and Endangered species and that the and NBS is merely a better means of providing protection. We better watch out for this one.
The property rights movement has grave concerns, and rightly so, about the efforts of environmentalists to pressure Congress into strengthening the ESA in implementing the NBS. Pennsylvania landowners should also have great concerns, but particularly since the Fish and Wildlife Service is to be the moving force in the NBS. In recent times we have seen a shift in the role of the F.W. S. Once thought to be a friendly, advisory and even benign Bureau, it has taken all the trappings of and enviro-police agency, operating in a high-handed, dictatorial fashion. It Secretary Babbitt and Representative Studds get their way, the role and authority of the F.W. S will expand dramatically. Many commentators believe that, after wetlands protection regulation, ESA/NBS mandates are the next and perhaps final steps in imposing national land use planning. Local governments which have traditionally and constitutionally maintained the authority over land-use issues will be held in a vise-like grip by unelected federal, preservationist bureaucrats. “C’mon,” USA, “EQB that bad! We’ll talk to our friends in Congress and they’ll introduce a bill … whoops!” as we learned, that isn’t going to solve the problem.
Now let’s go back to the beginning, what is all this about “Quick, strong and complete protection?” it’s the draft recommendation of the Erie County Planning Department for protection and preservation of “natural” values identified in a natural heritage inventory (”N H I”). NHI’s are under way in at least 28 counties in Pennsylvania. In the NHI in question, areas of “exceptional natural significance” are to be given “complete protection.” the kicker is that most areas identified consist primarily of private property. When you ask elected county officials what it means, they tend to shrug their shoulders or say “Don’t worry about it; it’s just some planning we have to do.” NHI bureaucrats usually dodge the question because they know the answer. The answer is these “values” are not to be disturbed by land use or development. And don’t kid yourselves about this either.
My point here is that NHI’s are going on in our backyards under the auspices of relatively unsophisticated but nevertheless preservation oriented planners who are separated only by a thin veneer of bureaucracy from local officials whom you and I know, elect, have access to and with many of whom we may even work or socialize. We know these people and can or should be able to influence them to rein in the preservation planners and environmental bureaucrats.
If this is going on at the local level–in our backyards where we can exert the most control politically–just imagine what happens at the national level in Washington, D.C., where an almost impenetrable wall of bureaucracy seems out or dilutes our influence and control. There, the voices most being listened to in the councils of government and by the media are those of the anti-development, preservationist extremists. In the Clinton Administration, the extremists are singing to the choir.
Landowners are now getting it with both barrels at both ends of the government spectrum. Don’t succumb to that comfortable feeling when some friendly legislator tells you he’ll introduce a bill. The people out there who want to take control of your land, both inside and outside of government, not only do it for a living (and because of your high taxes and widespread financial support given to anti-development, preservationist advocacy groups–a handsome living at that) but also because they believe in and enjoy what they are doing. Worse yet at the moment, our legislator friends are in the minority. You better watch out!
Wake up Pennsylvania.
1. While paying lip service to some landowner concerns, it institutionalizes a national policy of protecting and restoring wetlands and “No net loss.”
2. It should come as no surprise and give a clear indication of where Representative Studds stands on property rights when you learn he voted against Representative Taylor’s amendment to the NBS Bill. It prohibits entry onto private property unless the land owner consents in writing, is notified of entry, and notified that any data collected must be made available at no cost if requested by the Landowner (the amendment passed 309 to 115, with 14 not voting).
3. . On November 8th, 1995, the Wall Street Journal commented on the growth in personnel and budget of the F.W. S. Since 1985, the number of employees doubled. Between 1988 and1992 its annual appropriation rose from $426 million to 764 million and we’re supposed to be cutting back?!
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
It’s No Time To Relax
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - March 1995
It’s No Time to RELAX…
This issue of The Landowner is full of very illuminating information and news - some of it good but much of it bad and disheartening.
Devastating blow struck to the Brace family by the Third Circuit Court of Appeals, which deferred to counter-intuitive, regulatory finagling by unelected bureaucrats with the agricultural exemption over common sense, is discouraging. But the Braces refusal to knuckle under and resolve to continue their fight for their property rights is encouraging.
The reiteration of the enormous financial power and influence of the large anti-development, environmentalist advocacy groups that are arrayed against volunteer organizations with limited resources such as PLA is disheartening. And as discussed later, so are the continuing, disingenuous attacks on PLA which are sponsored and supported by some of these same groups.
We can take some encouragement in the 1994 Elections which seem to demonstrate that ordinary citizens have rejected big, intrusive government in many of its manifestations. You begin to think it may finally be possible to get EPA, the Army Corps of Engineers and Fish & Wildlife Service out of our backyards. Think about it-three, maybe four, huge, federal executive agencies (not to mention our old friends, the D E R, the Game Commission and the Fish and Boat Commission) looking over your shoulders when you clean a drainage ditch! Have we lost our minds?!
Is also encouraging to read the clearly enunciated the statement of PLA Mission, Philosophy and Agenda and realize that many newly elected officials have a similar philosophy, support PLA views and are willing and may at last be able to help landowners. Nevertheless, the imbalance of resources between PLA and the organizations are rate against it, and the ongoing influence of such groups in government and the media, is disheartening.
Despite all the bad and disheartening news, is reason for cautious optimism.
Nationally, the people have fired a shot across the bow of the big command and control government armada and it is dead in the water for the moment. Clearly there is now an opportunity to restore reason and balance in environmental regulation, perhaps even to pare back some of the more ludicrous mandates emanating from inside the Beltway.
Closer to home, the extreme, anti-development advocacy groups and their enviro-police allies are feeling the heat and you can take pride in the fact that it was PLA that turned up the flame! This last point was amply demonstrated when recently the self-proclaimed leaders of the Pennsylvania environmental community said this about PLA:
Over the past several years, a potent environmental backlash movement has emerged. This backlash which originated in the West and spread nationwide, has adopted the reasonable sounding name of the “Wise Use Movement.” However, the stated aims of the various organizations attached to the “Wise Use Movement” are to dismantle legislation and regulations which protect public health and guide the management of our natural resources. The most visible Pennsylvania “Wise Use” group is the Pennsylvania Landowners Association (PLA) based in Waterford, Erie County. According to its literature, the PLA opposes: Current wetlands and endangered species programs; designation of scenic rivers, prime watersheds, historical and archaeological sites; and information gathering processes such as natural heritage inventories is and the Pennsylvania Natural Diversity Index.
When you strip away the overblown rhetoric and outright distortion of PLA positions by These so-called leaders of the Pennsylvania environmental community, you realize that they recognize that they are beginning to lose their vise-like grip on public opinion and that the tide of such opinion is shifting. Look at what else they say in the handout when instructing their followers on how to counter the Wise Use Movement:
_______________________________________________________________________
ENHANCING THE IMAGE OF “CONSERVATIONISTS”
In addition to carefully crafting pro-environment, pro-property rights messages, environmentalists and conservationists should work on improving an already-positive public image. The following recommendations and observations can be applied to any issue and can be useful in any forum where one is making the case for environmental protection.
ENVIRONMENTALIST OR CONSERVATIONIST?
Some people perceive “environmentalists” to be groups with non-local, even global concerns and a clear political agenda. Environmentalists are not seen as elitist, but some people think of them as alarmist dedicated to their own agenda. On the other hand, people think of “conservationists” as more locally-oriented and less political than environmentalists.
BE BELIEVABLE AND BE BALANCED
People will gravitate toward those who espouse balanced approaches to resolving environmental disputes. To communicate pro-environmental messages beyond core supporters, take care to avoid extreme, absolute language. Use of extreme language plays to people’s preconceptions of environmentalists as alarmists.
BE PATRIOTIC
Property rights are among our basic American rights-they protect each individual home. Environmentalists share this value 100 percent and affirm that it is one of our precious constitutional protections. Never use the term “property rights” to describe what anti-environmental activists support. Environmentalists should begin to describe themselves as property rights advocates and our opponents as supporters of “Takings.”
TAKE THE HIGH ROAD
Avoid name-calling and labeling those who disagree with your position. Do not personalize this issue-hate the position, respect the opponent. State your arguments in positive terms. The environmental community has the moral high ground on this issue.
_______________________________________________________________________
I don’t have to tell you that the strategy advanced here is to mislead and try to dupe the public on environmental and property rights issues. Next, they’ll be talking about apple pie and motherhood!
The point is that the environmental community appears to be prepared to use all the tricks-innuendo, distortion and mischaracterization-to stifle the message and influence of organizations such as PLA. Sadly, they seem to get away with it.
A truly classic example of their double standard is found in the admonition to “Take The High Road” quoted previously. There, environmentalists are advised to avoid name-calling and labeling those who disagree with their position. However, in the very same handout, the environmental leaders label over 35 trade associations, businesses and civic organizations as “Misuse” and “Wetlands Destruction” groups. They even slam the Pennsylvania Building and Construction Trades Council! We all know that many of the members of these mainstream, constructive and responsible statewide organizations have supported many of the environmental advocacy groups which are responsible for this handout. Why should these mainstream organizations be labeled “Wetlands Destruction” groups when, from the environmentalist perspective, being accused of wetlands destruction, is the equivalent of being accused of a mortal sin? Sadly, the environmentalists seem to be able to get away with such name-calling.
An earlier issue of The Landowner pointed out the irony of having the Pennsylvania Environmental Council, once the leading voice of reasoned debate and consideration of multiple interests in environmental issues, allying itself with more radical, anti-development groups. Now, by signing onto the agenda of the First Environmental Congress, PEC participates in and promotes “name-calling” and “labeling” of many of its longstanding and loyal supporters. I don’t really understand this one.
Most all of these trade associations, which the “environmental leaders” now vilify as “Misuse” or “Wetlands Destruction” Groups have done nothing more than seek balance in wetlands regulation and try to cooperate with the environmental community. For that they get a slap in the face. It does bother me that no one calls a foul when a double standard is used.
Although we have come a long way, there is much, much more to do. Ordinary citizens finally have the attention of the politicians and the bureaucrats and their anti-development advocacy group allies. The environmentalists are running scared and have launched a counter attack on PLA and other organizations which are seeking to restore reason and balance in environmental regulation. But as is amply revealed elsewhere in this issue, the playing field is not level. Volunteer, grass-roots groups are outgunned in terms of financial and technical resources and public opinion is still being influenced by the media, which continue to plow the same old ground with blinders on.
This is not time to relax and sit back to see what happens. This is the time to consolidate your gains, press the initiative and shove the pendulum back the other way. Contrary to the distorted rhetoric of some of the extremist groups opposing PLA, most ordinary citizens and landowners don’t want to dismantle legislation and regulation which protect public health (as PLA is accused of wanting to do!), but they do want to get government off their backs and out of their backyards.
To take the next step, PLA more than ever needs the support of its members. To carry its message, PLA has set a goal of having members in every municipality in Pennsylvania and to achieve an aggregate member base of 10,000 individuals and businesses. PLA must be able to demonstrate to not only long standing and new friends but also to foes that it has the resolve to take a stand and the resources to back up its friends and supporters. Expanded membership is absolutely critical if PLA is to fulfill its mission and its agenda.
Because PLA has limited financial resources, it can’t engage a marketing or PR consultant to help spread the word of its successes or to recruit new members. Thus, PLA needs the help of its membership in the very specific way. Each of you is being asked to get involved and to recruit at least five new members. If we all make that commitment and fulfill it, PLA can achieve its goal of having 10,000 members within a matter of weeks or a few months.
Please get in touch with your friends, acquaintances and other contacts, particularly in parts of Pennsylvania where PLA is not well known or strong and ask them to join PLA. Reach out to your suppliers and the businesses which benefit from your patronage and don’t let your friends and neighbors sit idle on the sidelines. Get them involved in PLA. Call the PLA office for informational materials you can use in recruiting. It is all part of working together to take a stand for your land! Your involvement can really help to restore reason and balance.
1. The Department of Defense (Corps of Engineers), the Department of Interior (U.S. Fish and Wildlife Service), the Department of Agriculture (Soil Conservation Service), and the Environmental Protection Agency. This is
2. This is an excerpt from a handout distributed at the First Environmental Congress held in Harrisburg, Pennsylvania on October 2, 3, 1994, which was organized and sponsored by the Pennsylvania Conservation Network, the Chesapeake Bay Foundation, the Sierra Club, the Pennsylvania Environmental Council and others.
3. The handout distributed at the First environmental Congress identifies (labels) as “misuse” and “wetlands destruction” groups the following: Pennsylvania Landowners Association; Allegheny Hardwood Utilization Group; PA Independent Petroleum Producers; Hardwood Lumber Manufacturers Association; PA Mining Professionals; PA Association of Realtors; PA Land Improvement Contractors; PA Builders Association , PA Chamber of Business & Industry; PA Farm Union; PA Farm Bureau (PA Farmers Association); PA Coal Association; PA Gas Association; PA Manufactured Housing Association; PA Manufacturers Association; PA Oil and Gas Association PA Rural Electric Association and others.
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
If You Stop
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - August 1997
IF YOU STOP AND
THINK ABOUT IT …
I began to think about where we are on wetlands late last year while driving from Pittsburgh up to Crawford and Erie Counties to visit with some landowners about problems they were having with environmental regulations. I was a little hot under the collar because I had just read in the Post Gazette that the Clinton Administration was “tightening” wetlands protection. The story dealt with new limitations being imposed by the Army Corps of Engineers on various general permits the Corps used for smaller projects in isolated wetlands and headwater areas. The size for the general permit was being reduced from 10 Acres to 3 Acres and the area for “no regulation” was being reduced from 1 Acre to 1/3 Acre. It was enough for me to read that, in referring to this Clinton initiative, a wetlands expert from the National Resources Defense Council said: “It’s the best thing that happened to wetlands protection in a long time. ” If the NRDC likes it, you can bet the mortgage on the fact that it’s no good for the ordinary citizen who is concerned about wetlands.
“For crying out loud,” I thought to myself, “Didn’t Clinton get the message from the 1994 and 1996 elections that the American people were fed-up with big government and over regulation? Why is he tightening wetlands protection?” Every congressman worth his salt had signed on to some form of wetlands reform legislation. The Contract with America, which included regulatory reform, had resonated with the voters. Over in the Senate, Senators Hatch and Dole had led the charge on property rights and there was even talk of paring back some of the truly awful parts of the Endangered Species Act.
But it didn’t happen. Congress got side-tracked in the budget brouhaha and virtually all the reforms of environmental regulation which once seemed to be within our grasp slipped through the cracks, probably into a black hole. In fact, landowners have lost ground. The “rein in the regulators” rhetoric has been toned down and the Bruce Babbitts and Carol Browners are back to business as usual.
All you had to do was catch EPA’s Browner on C-SPAN, testifying to some Senate Committee on EPA’s initiatives to control emissions of volatile organic compounds, known as VOCS, and Superparticulates. The Senators just didn’t seem to be up to asking Browner the really tough questions and she pretty much got away with telling them that they shouldn’t question EPA’s interpretation of the science purported to justify the more stringent emission limitations or the alleged public health benefits to be achieved. I thought to myself: “What is it with these guys? Even the pro-environmentalist press reports that there are legitimate scientific questions about the need for and cost-effectiveness of the new limitations. ” you get the impression that our friends in the Senate don’t have the stomach to stand up to the typical “We know better than you what’s good for the people” rhetoric that environmental bureaucrats spout when they are cramming some new regulation down the public’s throat.
If United States Senators can’t stand up to an agency bureaucrat (because they don’t care or know enough to), how can a landowner in Warren or Susquehanna County fight off a horde of federal and state regulators, led by the U.S. Army Corps of Engineers and the EPA, the U.S. Fish and Wildlife Service, the Natural Resources Conservation Service ( the cutesy the new name for the SCS) and on the state level, the DEP, the Fish Commission and the Game Commission, when they are beating up on him for some use of his land they don’t like. A few years ago, we asked what are the Fed’s doing in our backyards, the state regulators are bad enough. Now the Feds are not only accepted as part of the landscape, they have much too much to say about what we can or can’t do with our land.
The further north I drove, the more I realized that we’re not making any real headway on wetlands and the madder I got. It’s really the same story at the state level. If you years ago we all thought that there were great prospects for wetlands reform in Pennsylvania. Tom Ridge was one of the strongest advocates of wetlands reform when he was in Washington (I used to say he rode the H.R. 1330 horse pretty hard). Now, Tom was governor, both houses had Republican majorities and Howard Fargo was ready with H.B. 200, a good, if not perfect, state bill patterned after H.R. 1330, Ridges horse. But something happened. The Governor had some concerns about H.B. 200 and, I would presume asked Republican leadership to hold off on moving in and they did. Instead, the Ridge administration fiddled a little bit at the margins of the problem and then dumped in the lap of the newly formed wetlands protection advisory committee, which meets every once in awhile to chew the fat about a variety of mostly academic issues such as wetlands classification and mitigation philosophy. All this did during this very interesting but diverts attention from the need for reform … perhaps intentionally?
It all boils down to the harsh reality that a lot of guys have taken a lot of credit for doing something about excessive wetlands regulation but as is usually the case in the political arena, the words have been louder than the actions. There hasn’t been any real reform and there won’t be any unless the politicians are convinced that it is politically expedient for them to do something about wetlands. I was frustrated when I got to my destination but then put it out of my mind for a while.
I was thinking about it again as I drove up to PLA’s 10th anniversary dinner where it was great to hear General Dick Lawson its eloquently articulate the importance of the PLA agenda and to recognize the contributions of Howard Fargo and Roger Madigan in trying to protect property rights. My spirits were buoyed and I was excited about getting back to work on landowners issues and optimistic that progress could be made.
I started thinking again on the next trip North to hear Tom Hylton lecture on how we all need to cluster in cities and towns and stop destroying Pennsylvania by building suburban housing, shopping centers and industrial parks. I had read Mr. Hylton’s book Save Our Land Save Our Towns and was headed up to Meadville and Edinburgh to hear his presentations at a so-called Quality of Life Forums sponsored by some very big hitters, such as the Pennsylvania Environmental Council, the Pennsylvania Economy League and the Federation of Sportsmen’s Clubs.
We’ll be hearing much more about this provocative book which calls for the elimination of suburban sprawl in Pennsylvania and the revitalization of our decaying cities and towns. You might quarrel with the proposal to eliminate sprawl, particularly if you happen to own the land where the sprawl will take place. However, hardly anyone can quarrel with revitalizing our cities. Unquestionably, Mr. Hylton views the world through Utopian lenses and sees good where others might see something else and vice versa. As I pointed out to the audience in Edinburgh, Mr. Hylton is sort of the Martha Stewart of central planning and growth management. It is obvious that his trendy recipes and prescriptions for saving our land are all the rage in the ranks of the environmentalist/preservationist community.
However, the Utopia he envisions would be much easier to achieve if we all had been born with or acquired the same elitist, aesthetic tastes and social values reflected in the book and held by its ardent advocates. Suffice to say here that the recipes and prescriptions are by necessity coercive in nature and will require old-fashioned central planning and top-down, command-and-control, implementation. The end Mr. Hylton wants to reach many would agree is noble; it is the means for achieving that end that gives me the chills.
Before starting on the trip to the Quality of Life Forums, I had read The New York Times and listened to the news on NPR which reported the Congressman Dan Burton has just received authorization to spend $178,000,000 to fund the Committees of the House of Representatives (just for the House, not for the Senate). This is the money that pays all the staffers who do the heavy lifting for our Congressmen. Burton, of course, was trying to get funding of his Committee’s investigation of improper political fund-raising by the Democratic National Committee during the last Presidential Campaign, but he had to cut a deal for the whole package to get his investigation funded. $178,000,000 is a lot of loot. It is more than enough to fix all the highways in Pennsylvania that Governor Ridge wants to fix and pay for by increasing the gas tax. I know the two numbers, although of magnitude similar, are not related, but it puts some things in context.
I was thinking about Congressional Committees and what they do because of the story I read in the Times that morning. The story involves bad experiences American homeowners were having resulting from compliance to section 6295 (K) of the Federal Energy Policy and Conservation Act as most recently amended in 1994. Section 6295 (K) establishes mandatory standards for maximum water use per flush for residential toilets. The standard is expressed in terms of gallons per flush or “gpfs”. The stated objective was to conserve water. As many of you probably know, I am not making this up. It is a fact that Congress is now designing the toilets in our homes. In the good old days you were free to get a 3 gpf tank if you wanted one; now you’re going to be limited to a 1.60 gpf tank. This, of course, proves that, if the American people stand by and let it happen, Congress-not to mention the hordes of regulatory bureaucrats Congress foists off on us-will happily get involved in the most intimate details of our daily lives. If Congress can control how we will “go to the bathroom” (good taste and Landowners editorial standards prevent me from using more familiar colloquial terms for the important human functions involved), it follows that Congress can in the future and probably may be tempted to tell us when!
This particular statute goes on to set similar “standards” for virtually every household appliance and personal convenience we enjoy. So don’t tell me, as Carol Browner tried to tell the Senate and C-Span audience, the Federal Government won’t regulate emissions from charcoal barbecue grills or power mowers. The government will regulate (control or prohibit the use of) anything we let it get its hands on.
There are a couple of points to think about from all this. First, just because Congress or some agency dictate how something is to be done, doesn’t mean that the something is right or will work. In fact, just the opposite is usually true. It is usually wrong or won’t work. The Times story backs me up. The 1.6 gpf toilets aren’t working. It cases documented by the Times’, the 1.6 gallon flush per use simply doesn’t do the job, so two flashes are necessary and the spurious water conservation objective is defeated. Except for the inconvenience, American residential toilet users probably don’t care about having to flush twice but they have the street sense to know that Government intervention in the National toilet flushing process is not going to have any impact on water conservation, particularly if they live near the Ohio River in Ohio and Kentucky where more most people recognize that Mother Nature controls the water, not some nerdy bureaucrat or uninformed Congressmen who tries to control it by telling us how to flush our toilets.
However, it does bother us, as the Times reported, if the 1.6 gpf flush doesn’t do the job and the commode gets “backed-up”. Having functional toilets has long been one of our most highly valued amenities. We are global leaders in this area of human endeavor. Many in the emerging nations of the World would be better off using water from our toilet bowls than using the water supplies available to them. But in the U.S.A., having to get out the plunger to fix the toilet anger’s us-just as much as waiting in line to buy gas or, worse yet, waiting in line for an auto emissions test in some remote location. The American market economy or the free enterprise system or whatever solves some of our problems or provides some amenities and conveniences for the people and the government comes along and screws up. Figure that.
But let’s get back to the $178,000,000 for Congressional staffing. You really think Senators Rick Santorum or Arlen Specter said down and thought about the proper water volume for toilet flushing? Was Rick for 2.0 gpf and Arlen for 1.5 gpf? Did they ask representatives Phil English or Joe McDade and what they thought? Was 1.6 a trade-off on something else? Maybe, but I doubt it. I have to believe that section 6295 (K) was “staff” work. These staffers are supposed to do detail work for Congressmen so their bosses can do the big picture stuff. They’re supposed to be bright and able and do the right research so their man gets it right. But, if they can’t get it right on toilet flushing, how come we trust them to get it right on health care, roads or the environment? How about farming? It is counter-intuitive to think that if they screw up the little things like maximum gpf standards for toilets they’re going to get the big things right.
I hope that Rick and Arlen and Phil and Joe aren’t debating gpf’s for toilets. First, it’s none of their business. We don’t need Uncle Sam designing our toilets for us, particularly when it is obvious he doesn’t have a clue. Second, if they let the staff do it, they’d better be prepared to take the blame when the staff screws it up. But when is the last time you heard one of our Congressmen or Senators admit he was wrong. If Congress and the staff simply stood by and let the bureaucrats moved the toilet control standards through the legislative system into law (like a 3.0 tank flush moves speedily through the septic tank or sewer), it is the best argument for term limits and staff cutbacks you could find.
Government, if left unchecked, will do more to you than you could ever imagine. Just think about section 6295 (K). And while we’re on the subject, maybe the Corps of engineers ought to get out of the headwaters and isolated wetlands areas and see if anything can be done about controlling floods down in Kentucky.
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
How’s Your Health?
Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - Summer/Fall 2000
How’s Your Health?
Mine is pretty good. I watch my diet, avoid fatty foods, take my medications and keep an eye my blood pressure. My stress level is down a little bit because I no longer confront, on a day-to-day basis, the bureaucratic inertia of the big law firms were I have toiled over the years. These firms are moving toward “modern” business management techniques to adapt to the keen competition to grab for the seemingly finite pool of those almighty bucks available in the so-called legal market. What has fallen off along the way is the collegiality and mutual respect and loyalty among professional colleagues and longstanding relationships with clients and loyalty to particular industries. These qualities are what made law practice in “old fashioned” times so appealing and attractive. You were engaged in a profession and even though you couldn’t get rich-not like a second string shortstop batting .241, a porn website operator or some lucky IPO investor in a flimsy, thrown together, start-up company with no prospects for ever making. But you did OK and there was job satisfaction and a quality of life because she knew you were using whatever professional skills you had for a client’s cause who, at least, recognized your efforts. Back in those days, your partners appreciated your client’s and your contributions and even said so occasionally.
I am out of that rat race because I couldn’t adjust to the distasteful, (to me) demands and business objectives of these “big-time” law firms. One of the problems I confronted was that many of my clients were engaged in what these legal “Kings of the World” perceived as declining and low-tech, maybe even politically incorrect, activities. You know: farming, mining and logging and real estate. Many of those were ordinary citizens doing nothing more than trying to avoid being steamrolled over by some regulatory bureaucracy or elitist environmental group which always claim to know far more about what’s good for you and your land than you do yourself.
I made this career course change somewhat late in the game and my health is OK but I am suffering from a couple of maladies that picked up along the way but never recognized before.
One is Shortness of Hours. The other is Braying Jackass Syndrome or BJS.
The first one is in terrible. I don’t have enough hours left to practice all the law I want to and do all the things necessary to see the goals and aspirations of organizations like PLA achieved. Obviously, the aging process plays a big part in this Shortness of Hours but there’s more to it than just getting older. The other part is that now it takes more and more hours just to defend your own goal line, let alone to make a couple of first downs going in the other direction. It simply takes more time to make your point. For example, when Senators look dumbfounded and even annoyed at you when you tell them that the smaller landowners you’re speaking for really want less government regulation and laws, not more. You can tell that the Senators just don’t get it and you have to take the time to explain something that should be simple and obvious before you start making your main point at all.
It may be symptomatic of these times and maybe they are good times. It seems that everyone is making out OK and so why worry about things like property rights and over regulation.
Reform of wetlands regulation is a joke. The eight other agencies involved in wetlands won’t “accept” DEP’s de minimus standard and now the boys and girls in Harrisburg have added a another player to the merry band of wetlands regulators-the local zoning and planning code enforcement guy. A Federal Court of Appeals, in more than just a casual slap on the wrist, told EPA and the Corps of Engineers that the expansion of their jurisdiction over wetlands by declaring incidental fallback in plowing or ditching (the Tulloch Rule) to be a discharge of fill in waters of the United States was unlawful. But on August 16th, the EPA proposed a grossly self serving regulation which guts and clearly violates the spirit of the Court’s ruling and, for all practical purposes, reinstates the Tulloch Rule.
Some progress, huh?
When is the last time you heard political leaders talking seriously about having the government compensate you when the application of some environmental regulation destroys your intended use of your own property? It’s been a long time.
And, remember, not too long ago Senator Santorum said “I support property rights protection legislation but the United States government simply can’t afford to pay compensation to the individual’s devastated by regulatory takings. ” That excuse was particularly disturbing because it was premised on the notions that there were in fact an awful lot of regulatory takings going on (he was right on that one) and that all good legislators solve such problems by throwing money at them (he was wrong on that one). Say the legislators: “We’ll let EPA impose the excessive or stupid regulatory program but we would pay you to keep your mouth shut (or, to you cynics out there, keep your chains on), if the government has the money. ” “But,” said legislators, “We can’t pay you today because we’re trying to keep the budget under control. ”
That rationalization (I’m not singling out Rick Santorum, who is a good friend of PLA, this all legislators do it) conveniently ignores the other part of the Fifth Amendment-if it’s a taking and the government doesn’t pay for it, the government isn’t allowed to implement the regulation that causes the taking. This is the part they get wrong. The Constitution is supposed to protect the individual and private property from the government, not authorize the destruction of private property … and those landowners who stand up for their rights along the way. The fact is that the good old boys in the Senate and the House blow all our money on other stuff and then claim there’s no money left for constitutionally required compensation. However, when you look around, it’s obvious that there is plenty of tax payer dough floating around. Can you imagine seeing, in your own backyard, a $340,000,000 project to build a tunnel under the Allegheny River to take people a few hundred feet from downtown Pittsburgh to the two, brand new, taxpayer financed, professional sports stadiums ($250,000,000 apiece) and then remembering that you told a bunch of supporters out in the sticks that the government could not afford a few million to compensate for takings? It would make me cringe just a little bit.
But it doesn’t seem to bother politicians. They think “That was Then, This is now and we’ll give you prescription drugs or fiddle around with the farm economy and you’ll all go back to checking the stock market quotes on CNN or play around on the Internet. ”
That is when I began to understand that I was suffering from Braying Jackass Syndrome. The symptoms are easy to identify but the cause is hard to explain-But let me try. The constant braying you hear from elected officials, regulators and environmental zealots begins to take its toll and you begin to think things that your common-sense and entire value system should tell you are just plain wrong, are OK. All you have to do is look at the newspapers or TV to find evidence of BJS For example, a substantial percentage of the population is going to vote for Al Gore. But many of these voters love their cars (maybe even their SUVs), houses in the suburbs and an occasional steak. Some would even like “risky” tax cuts. They don’t like crime and drugs in their neighborhood or anywhere else, for that matter. These people have BJS because it is clear that they aren’t trying to or simply can’t connect the dots. Maybe they haven’t read “Earth in the Balance,” Mr. Gore’s environmental manifesto or one of his more recent books-”What I Learned in the Buddhist Temple in L.A.,” but they ought to know the people like Carol Browner, Bruce Babbitt, George Miller and Henry Waxman will be running the show in a Gore Administration. If Mr. Gore is elected, we’re in for the regulatory roller-coaster ride of our lives. All because of BJS and failure to connect the dots. And remember, BJS leads to Shortness of Hours.
You can’t avoid BJS by staying outside of the Beltway. You can catch it in Harrisburg just as easily. Pennsylvania is dishing out serious, so-called “Growing Greener” money to local governments and watershed protection and preservation groups and funding all sorts of projects through the DCNR and DEP. Do you have any idea how much? I doubt it.
Planners are planning, consultants are consulting, conservancy’s Arkin serving and public lands are being “augmented,” all on your dime. In the old days and on a smaller scale, this was called “Walking Around Money” or “W. A. Ms,”-A little grease spread around to make the wheels of elective politics spin. “Growing Greener” handouts are more subtle (like most all white shoe-in this case Republican-elitist initiatives) but it doesn’t alter their fundamental characteristic-tax payer money being spread around to advance a political agenda. Its green all right-giving the green so your legislator gets the green light on his reelection.
But look what we do-We stand around with a dumb smile on our faces when some local politicians and announces that just “gave” some township or conservancy some big bucks for conservation planning or land purchases to protect you from development. If you feel yourself start to applaud and think how wonderful it all is, you’ve got it! BJS strikes again. You can no longer connect the dots. This is a progressive disease and in its later stages common-sense is destroyed and your inherent need for the comfort of knowing that the Constitution protects from government diminishes to a vague memory of something you read in a civics textbook. Your sense of “Whose money is whose?” evaporates. You no longer even try to connect the dots. Stuff that is counter-intuitive slips right by on you.
Another example. Nobody seems to worry or even care that there has been a radical change in land-use law in Pennsylvania and your right to use your own property as you choose in one township can be eviscerated by what goes on in another township and, with all the braying going on, you haven’t even heard about. If BJS hasn’t got you yet, go-ahead and ask your legislators what Acts 67 and 68 do. See what they say. See if they even know. It is a simple diagnosis for BJS if they explain it and you buy it, you’ve got it.
There are other simple tests. Ask your legislator if Pennsylvania’s stream protection program - DEP’s High Quality and EV stream designation process - is more stringent than required by federal law. Ask your Congressman how they’re coming along with reform of the Endangered Species Act. Ask him what would happen to you if your property was located in the critical habitat of endangered species.
If you get an answer to any of those questions that makes you feel comfortable, you’re terminal with Braying Jackass Syndrome. You won’t have to worry about Shortness of Hours or connecting the dots.
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
How Stupid Can We Get?
Henry Ingram, Esq.Article Appears in the Pennsylvania Landowner - October 1996
How Stupid Can We Get?
If It Happened In the Private Sector Somebody Would Be Fired or In Jail!
I was driving through Connecticut recently on my way to a family reunion and listening to NPR. To keep myself awake, I was concentrating carefully to detect and discount the pro-government, anti-property rights editorial bias on the part of NPR commentators. During a break for local news, a lawsuit involving auto emissions testing between the state of Connecticut and the company called Envirotest was discussed. That jogged my memory. Apparently, Connecticut was running into the same problem that we had here in Pennsylvania last winter but seem to have forgotten.
Although I am sure there is much more to the story in Pennsylvania than was reported by the media, the Envirotest debacle epitomizes what is wrong with a society that doesn’t keep tabs on its government.
What happened in simple terms is this. Over the past 25 years since the initial passage of the Federal Clean Air Act, Congress has continued to tighten down air emission standards under the Act and the EPA has happily gone along, imposing more and more stringent controls on activity which had or was perceived to have an impact on air quality. At first businesses were hardest hit. Over time emissions of sulfur dioxide (SO 2) and nitrous oxide (NOX) and particulate matter from industrial smokestacks were required to be and were in fact greatly reduced and, further egged on by enviro scares such as global warming and global cooling, our air was pretty well cleaned up. During this gradual tightening down of emission controls, so-called stationary sources were the easiest targets. By and large they were operated by politically unpopular, private sector businesses which were unable to generate enough political support to quiet the Clean Air hysteria in the ’70s and ’80s. The costs of Clean Air Act compliance, which were enormous, were passed through to the customers of these businesses and then to the public in the form of the hidden tax of higher consumer prices.
According to Professor Thomas Hopkins of Rochester Institute of Technology, although they may not be aware of it, in 1995 American households, workers and businesses spent $670,000,000,000 to comply with federal regulation. Professor Hopkins points out: Federal Clean Air Act compliance is a significant and growing part of this enormous regulatory burden which we chumps out in the sticks have allowed state and federal elected officials, and their willing accomplices, unelected, aggressive and largely unaccountable environmental bureaucrats, to shove down our collective throats. So far we haven’t gagged, but I’ve started to hear some gurgling noises. But let’s get back to the story:
The one place the Clean Air Act enviro-police had to tread a little lightly was in the area of “mobile sources.” emissions from mobile sources were causing much of the air pollution, particularly NOX emissions. However, you have to be sophisticated enough to know that “mobile sources” is inside-the-Beltway jargon for plain, old cars. And that’s us folks. Everybody has a car and nobody wants government to interfere with our unfettered right to use our cars as we see fit. In a real sense, the rights of ordinary citizens to own, and use cars provides a personal mobility and individual freedom which sets this country apart from most others.
Somehow it’s okay to denigrate and burden factories and power plants because our national psyche has been conditioned to accept the notion that productive, economic activity has to be severely limited to prevent virtually all pollution or environmental harm a totally clean natural environment is the ultimate goal. Any obstacle to achieving that goal is politically incorrect. What we forget is that those dirty, old factories and power plants are what give us the amenities and environment that we as human beings either demand or have otherwise become accustomed to. Indeed, the economic activity represented by these dirty old factories and power plants not only provides the wherewithal to control pollution and clean up the messes we human beings make, it even provides our national security. As an aside, can you picture a battalion of federal bureaucrats armed only with their calculators and desktop computers battling a company of say, Afghan Freedom Fighters. Of course not, and they’re not expected to but even our military couldn’t do much without weapons produced in those dirty old factories. But by the same token, these bureaucrats aren’t supposed to attack us or our way of life either. If they can’t make anything or do much more than spend our money at least they can get out of the way of progress and stay neutral.
Forgive the digression. Let’s get back to the cars and the Envirotest debacle. The first Clean Air Act intrusions on the cars were relatively minor. If we wanted a new car we had to buy lead free gas. Then we had to accept catalytic converters. It began to hurt a little but it was all pretty well disguised. Gradualism was a strategy because some of the bureaucrats and enviro-police began to catch on to the harsh reality, that the average, ordinary citizens, didn’t take too kindly environmental controls that directly affected them, either in their pocket books or their individual sense of personal freedom which had been reinforced so significantly by the car.
Some, but not all, regulators, caught on. It is the ones that didn’t catch on that brought us the Envirotest debacle.
Simplifying the story, what happened is that EPA mandated more rigorous emissions testing for cars owned by virtually everyone in areas where government prescribed ambient air quality had not been attained. It was left to the states to come up with the implementation plans for the new testing under deadlines imposed by EPA. In typical fashion, the federal government added the usual command and control coercion to the equation. If a State didn’t come up with an acceptable plan by the deadline, it could lose federal highway money. And there it goes again folks, Uncle Sam coercing you into doing something by withholding your own money. Remember, it’s not the government money it’s ours.
The Casey Administration saw an opportunity and decided to impose centralized auto emission testing. The idea was to hire a contractor-Envirotest-to come in and build and operate regional testing centers to which individuals would travel for the testing. It was a sort of enviro-police Field of Dreams-”Build them and they will come!”
As I recall, the test would cost 20 or 25 dollars and the bureaucrats were confident the waiting around at the centers and long lines wouldn’t be a problem. (I wonder if any of these bureaucrats have ever seen the hordes of people around the post office waiting to the last minute to mail their tax returns on April 15th). Contracts were let, testing sites were identified and the centralized emissions testing Boulder began to roll down the hill.
But something happened on the way to the bottom of the hill. People began to wake up and say: “What are these idiots doing? This is crazy. I’m not going to put up with it!” Protest groups were formed. Legislators were yelled that and the state and federal regulators began to look for ways to run for cover. The centralized emissions testing dog just wouldn’t hunt. Big Brother had finally trod too heavily on the wrong toes.
Amid all this hue and cry was the 1994 gubernatorial election and in charged Tom Ridge who had pledged to save us from DER as we knew it. His politically savvy solution was to scrub the testing program. That was okay with us because it was such a dumb idea to begin with.
Unfortunately, the new governor couldn’t get rid of one of the last legacies of the Casey Administration-the big contract with Envirotest. The new Administration was saddled with a lawsuit which ultimately had to be settled for somewhere around $160,000,000. As I recall the potential liability was for much more so the settlement was probably a pretty good job, judged by government standards or, as we could say about the settlement, it was “Good enough for government work.” The only problem is we still have the federal mandates. EPA is still threatening to penalize Pennsylvania, the return of our gas tax dollars are still at risk and environmental agitators are sure to press litigation to compel DEP’s compliance with federal mandates, collecting counsel fees from the public treasury all along the way.
I’m sure some of you will say $160,000,000 is a relative drop in the bucket-about 15 bucks for every one of the 11 million or so Pennsylvanians. Maybe that’s right. Maybe we have reached the point spending $160,000,000 - as it turns out for nothing-doesn’t mean anything. But wait a minute! Isn’t that a big percentage of what Governor Ridge needs in state gas tax increases so we can get on with fixing up our roads? Governor Ridge says fixing up our roads is an absolute necessity and I think many of us would agree. If we hadn’t blown the $160,000,000, we wouldn’t need so much of the tax increase.
And $160,000,000 it’s just about enough for the luxury of a new baseball stadium in Pittsburgh-more of this “Build it and they will come,” stuff.
Think about how much compensation could be provided to landowners who can’t use their property because it contains wetlands out of that $160,000,000. Remember, it was the Ridge administration was reluctant due to budget concerns, to support Howard Fargo wetland reform legislation (H.B. 200) because it provided a statutory right of compensation.
What really galls me is that we sit there and let it happen. A cool $160,000,000down the black hole and we go back to watching the ball game or the soaps. Sure we don’t have to drive to some testing center, but what about our stupidity and not speaking out (screaming at the top of our lungs would be better) before the people we elect, and tolerate in office, figure out a way to blow that much money.
My experience tells me that as a general proposition, you should expect people who populate the government and regulate us to be any smarter than the general population. I have no reason to expect the government to build a better mousetrap than you and I can. Sadly, the Envirotest debacle is a vivid illustration of how dumb and apathetic we all are. Our biggest problem is how can we protect ourselves from our own stupidity and apathy: do we really want the government to spend that much of our money to clean up a mess it created when we shouldn’t have allowed it to happen in the first place? How many more $160,000,000 hits can you afford? How much longer are you going to sit there and take it 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
If You Don’t Know Why…
Henry Ingram, Esq.Article Appears in the Pennsylvania Landowner - September 1994
If You Don’t Know Why…
It May Be Too Late!
The other day while leafing through some periodicals I ran across a reference to the Pennsylvania Noxious Weed Control Law. Curiosity aroused, I looked up and found that we now have a Noxious Weed Control Committee which designates noxious weeds and directs our municipalities to eradicate them if the Landowner doesn’t do it himself. Besides conjuring up an image of a bunch of pompous bureaucrats sitting around a room in Harrisburg mulling over what weeds to designate, I got to thinking about environmental regulation generally.
As many readers know, I have been dealing with environmental regulations and regulators in Pennsylvania for more years than I care to count right now. I go back to before the Sixties and early Seventies, when the General Assembly laid the basic legislative foundation for cleaning up our air, water and land resources. The purpose then was to prevent air and water pollution to make sure industrial activities were controlled so that public health and safety and the natural environment were protected. Indeed, Pennsylvania was a pioneer among states in air and water pollution control.
The benefits of this early legislation were obvious to everyone. Costs could be internalized by the industry or passed on to customers and the environment was improved. In fact, a broad consensus emerged. In May 1971 the voters of Pennsylvania overwhelmingly voted YES on the following ballot question for a Constitutional Amendment:
Proposed Amendment to the Constitution No.3
Shall Article 1 of the Constitution be amended by adding a new section guaranteeing the people’s right to clear air and pure water and the preservation and conservation, by the Commonwealth, of the state’s natural resources for the people’s benefit?
You may remember that this was in the dawn of the environmental era. Rachel Carson had aroused the conscience of the nation with a somewhat hyperbolic book, Silent Spring, and the first Earth Day was celebrated on April 22, 1970. In those days, many of us still had confidence that Government could solve all of our problems. We continued to cede more and more power and authority to Congress which in turn delegated that power to unelected and largely unaccountable regulatory bureaucrats.
What we didn’t have realize was that along with the higher taxes being imposed by the central government would come, a whole series of new federal environmental statutes: the Clean Water Act, Clean Air Act, the Toxic Substances Control Act, CERCLA or Superfund, just to mention a few.
States were coerced into bringing their own laws “Up” to federal standards. If the states wouldn’t go along the federal agencies would preempt local control and come into the states to enforce the new environmental mandates directly. Congress wasn’t satisfied with just controlling pollution-causing activity. It also decided that it should begin to dictate aesthetic preferences and economic choices for ordinary citizens and landowners. We began to get things like the Wild and Scenic Rivers Act, the Endangered Species Act and the Historic Preservation Act and countless others. The purpose of these statutes was to preserve certain “natural values” by stopping development, not by controlling it. These statutes spawned regulatory programs that were foisted off the general public as “protecting the environment” and most ordinary citizens probably thought Congress was just trying to prevent industrial pollution. We know better now but to be entirely honest, it was us ordinary citizens who elected and reelected the people who enacted all these statutes and created enviro-police who enforce the regulations. We sat idly by while it happened.
Landowners in Pennsylvania began to wake up to what had happened when U.S. Army Corps of Engineers and the EPA began showing up in their backyards, doing more than just talking about wetlands. The alarm went off when, under Rails-to-Trails, reversionary interests in abandoned railroad rights-of-way were “suspended” and the former right-of-way suddenly became part of a fictional rail bank for future railroad use and, by the way, it will be used in meantime by the public as a recreational trail. If your insurance man, banker or machinery dealer tried to pull off a scam like Rails-to-Trails he’d be run out-of-town on a rail (except now, it’s probably a park!). Why some legislator with the typical inside the beltway arrogance and Gucci loafers can get away with this kind of scam defies logical or rational explanation. Are we all too dumb, naïve or disinterested to do anything about it? That’s what the people who are cramming all this down our throats must think about us.
I can sense some of you thinking to yourselves: “What’s the big deal about Rails-to- Trails? Most trail groups don’t have funding and municipalities don’t have the money to pick-up the few parcels needed to complete the trail or to maintain or police it. These trails won’t get off the ground.” Like so many other things we let government get away with, our friends in the Pennsylvania General Assembly have come up with a solution - the Key 93 legislation which grabs realty transfer tax money from the General Fund and diverts it to “recreational projects” such as Rails-to-Trails. They’ll let us pay for it! Are you getting in now? Government takes some of your property, lets others use it and makes you pay for it. Not only do we not run ‘em out-of-town, we vote for ‘em! The Music Man fleeced the suckers in River City but at least they got the trombones. Landowners get the hole in the donut.
At the risk of running out of space before I get to my point, I have to mention the latest scam, the National Biological Survey (”NBS”) which is unfolding before our eyes right now. The NBS has been characterized in Don Hopey’s Green Beat column as “the Clinton Administration’s ecosystem approach to public land management.” The idea here is to survey all the ecosystems in the country so “rational” decisions on how and what endangered species should be protected. According to Mr. Hopey, “the NBS will catalog and map America’s plants and animals to provide much needed information about the nations biological resources.” In reality, the NBS is a device to deflect criticism of Endangered Species Act enforcement debacles such as Spotted Owl (25,000 timber industry jobs lost) and the Coastal Gnatcatcher (hundreds of homes burned to the ground in California) and to set the stage for more government control over private property. These surveys are to be made on private lands as well, not just public lands as a reader might infer from Mr. Hopey’s column. I can hear it now: “Just a little survey folks; we just want to see what you have here and put it in an overall perspective.”
If you fall for that one, you should be ashamed. First of all, these are the same kind of people who do the Census. If Government can’t even count people right, how is it ever going to count all the plants and animals? And if you haven’t heard about “buffer zones,” “habitat enhancement measures” or “no development zones,” we might as well put you back up and on the Turnip Truck! You should come up to Erie County and learn about Natural Heritage Inventories! (the state mini-version of the NBS)
Now I’ll get to my point. PLA has achieved great success in alerting Pennsylvania Landowners to the dangers of excessive Government land-use regulation and environmental extremism. It has also been recognized as the leading advocate and defender of private property rights in Pennsylvania. PLA’s early success and recognition was a direct result of its Posting Program. People across Pennsylvania who had become accustomed to accepting the hospitality of landowners for any number of recreational purposes, including hiking, hunting and fishing, were abruptly made aware of landowners’ concerns when thousands of acres were posted. The Posting Program was instrumental in focusing public attention on excessive land-use regulation. In case you haven’t noticed, landowners aren’t having a whole lot of success in restoring reason and balance to environmental regulation. And the trend continues toward expanding (at all levels) government control over land-use and the voices of the anti-development extremists are still being amplified by the popular media and listened to by government policy makers. To me, it is difficult to understand why some landowners are reluctant or refuse to participate in the Program.
I know that Landowners who have participated in the Posting Program have been criticized and even threatened by individuals and certain groups including persons who purport to speak for the Fish Commission and the Game Commission. PLA believe such opposition to posting should encourage not discourage, landowners to participate in the Program. It means that posting is working. It’s drawing attention not only to property rights issues also to the growing concern of landowners about overregulation.
In typical fashion, the Fish Commission responds to posting by threatening to not stock segments of streams crossing posted property. The theory is that PFC regulations don’t allow stocking if access is not open to the public. Isn’t it typical of bureaucrats to hide behind their regulations? Do you think it would ever occur to them to change their regulations to recognize property rights? All the Posting Program requires is that persons seeking to use a landowners property ask his permission (and of course, behave responsibly). Why does that bother the Fish Commission so much? My guess is the commission doesn’t want anyone asking about overregulation or questioning PFC policies at all.
Similarly, another argument used against posting is individuals who participate may lose the benefits of the liability limitations granted to landowners who allow open access to their land for recreational purposes. That may be so but did you ever notice that if Government gives you something, it always takes something back, usually more than it gives you in the first place. Government is trying to entice you to trade one of your fundamental freedoms and important constitutional rights, the right to control who comes in your property. In reality, the liability limitation provision was intended by the General Assembly to open more private land for recreational land use and not to benefit the landowner. Our Government wants to curry favor with voters by making your property open to the public and so it throws you a bone. It sounds a little bit like bread and circuses in the declining years of the Roman Empire, doesn’t it?
Posting gets the attention of people who like to use your land and the bureaucrats who love to regulate it. If enough people complain to their legislators about posting, it may even get their attention too. That is the point of posting. It begins to level the playing field in communication and forces public debate on land-use issues. It is one of the few tools ordinary citizens have to communicate. It is an affordable and effective way for you to take a stand for your land and for private property rights.
1. I suspect that persons who are of that mind-set don’t have a “public” trail running through their backyards.
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