CARA
– The Unraveling of a Free Nation
By
Fred Kelly Grant
For the
past two sessions of Congress, Congressman Don Young and Senator Frank Murkowski
have filed bills calling for the largest amount of money ever attempted to be
allocated for federal and state land acquisition of private property in America.
The bill currently filed is HR 701, titled The Conservation and
Reinvestment Act.
The current
bill does much more than just increase the Land and Water Conservation Fund, the
land acquisition funding mechanism. It
increases the total amount of offshore revenue to the government for CARA from
$2.8 billion to $3.1 billion with over $1 billion a year available for
acquisition of private property. It
also gives the federal agencies a blank check by placing these funds off budget,
with little to no accountability on how the money is spent.
Further, it
creates several new environmental programs that will make current environmental
laws such as the Endangered Species Act pale in comparison.
When it
became clear that the Senate would not pass CARA in the last session of
Congress, portions of the bill were passed as riders to end of the year
Appropriations bills. “CARA Lite,”
as it became labeled, included a new program for habitat protection of non-game
species, which can include most other species not currently covered under the
ESA.
At the
beginning of 2001, a new and larger version of CARA was re-introduced, again as
HR 701, and the battle for property rights began for another year.
Proponents propose to set aside $45 billion over the next 15 years, a
large portion of which would go directly to state and federal land acquisition
funds. Proponents have also
launched with the bill a campaign to convince the public and their peers that
the bill is property rights friendly. Nothing
could be further from the truth.
This third
report on this massive land-grabbing bill attempts to separate fact from fiction
with a close analysis of what the language of the bill would mean for
landowners.
This report
is designed to:
·
Dispell the myth of “willing seller” and show how the writers of the
bill crafted the language so that the judicially accepted definition of
“willing seller” would not apply to anyone adversely impacted by this bill.
·
Show how condemnation of private property is clearly the intent of the
bill although proponents claim property will only be acquired from “willing
sellers.”
·
Explain how CARA provides the opportunity for creation of 50 state
species protection programs, which will dwarf the impact of the Endangered
Species Act.
·
Illustrate how adjoining property owners or inholders to the vast new
federal and state land holdings created under this bill will be adversely
impacted through additional regulations and restrictions although proponents
claim otherwise. Other Acts of
Congress and court decisions already make this possible.
·
Dispel the notion that property owners will have the protections
proponents claim through Section 10 of the bill entitled “Protection of
Private Property Rights.” This section provides no additional protections than
what is already available to landowners under the Constitution of the United
States.
·
Show how not one word of the bill protects existing private water rights
against encroachment and intrusion under some cooperative management agreement
reached between the state and federal agencies to use water for game refuges or
habitat protection for any species.
·
Explore how CARA crosses the fine line that separates the legislative
constitutional authority from the executive by giving the executive the ability
to permanently shape laws and package legislation. If CARA passes, it may well
be found to be unconstitutional in a court of law just as was the Line Item Veto
in 1998.
Through
close inspection of the language of CARA, not simply the claims of proponents,
it is clear that projects cannot be successfully funded without the erosion of
private property in America and the accumulation of federal and state land
holdings.
INTRODUCTION
“HALF A
LEAGUE, HALF A LEAGUE, HALF A LEAGUE ONWARD…”
From
the Charge of the Light Brigade, by Alfred, Lord Tennyson
Throughout
the year 2000, opponents of the Conservation and Reinvestment Act (CARA)
repeatedly emphasized CARA’s inherent dangers to private property.
Supporters who long for the pork value of the $45 billion spread over 15
years ignored, evaded and down-played the dangers.
Opponents
directed attention to specific language in the Bill which provided for
condemnation of private property, uncontrolled discretion of bureaucrats, and
full-scale enlistment of the states into the assault on private property rights.
Supporters openly ignored the specific language and misrepresented the
potential impact of the Bill. Even
during the floor debate in the House of Representatives, when confronted with
specific language providing for condemnation, Don Young and his minions, without
shame, contended that property would only be bought from “willing sellers.”
They assumed that a vast majority of Americans would not take the time to
actually read the long, complex Bill.
The Bill
passed by the House of Representatives hit the proverbial brick wall when a
small, but dedicated, band of Senators stood the watch for property rights.
When it became clear that the Senate would not pass the Bill as referred
by the House, the White House and CARA supporters forged a compromise which was
enacted as portions of various appropriations bills.
This “lite CARA,” gaining its name from the reduced funding limits,
was pronounced a victory by some opponents.
But, most all of those familiar with the process recognized that the foot
of the monster had been wedged in the door, and that the “heavyweight CARA”
would return to the ring.
Now, the
House is again faced with HR 701, a CARA bill carrying the same baggage as the
last. Again, supporters make false
claims about the contents of the Bill, and ask the American people to have faith
in them to do the right thing.
Opponents,
much like the members of the Light Brigade memorialized by Alfred Lord Tennyson,
once again must enter the fray to set the record straight. They must feel the same futility that doomed the Brigade.
What can be said and done that was not said and done during the last
session? But they, like
Tennyson’s “noble six hundred,” will charge ahead, without dismay, to do
what they see as their duty. They
must remember, and remind Americans, to read the language of HR 701.
They must remember, and remind Americans, to study the language rather
than place faith in the claims of the Bill’s supporters.
As John C. Calhoun of South Carolina reminded the Congress in 1810,
“Faith is an article of religion but not of politics.”
Ray Kreig
is an ardent supporter of private property rights who last year helped persuade
the Alaska Republican Party to oppose CARA in the face of fierce lobbying by
Rep. Don Young. In May 2001, Kreig
asked a CARA supporter to respond to the analysis set forth in “Fatal Flaws of
CARA” and “Fatal Flaws II, CARA Exposed.”
The supporter offered to make himself available to “discuss what the
House bill will and will not do.” It
might be useful to discuss what the supporter believes will result from
application of the terms of the House bill.
But, the best evidence of what the House bill “will and will not do”
lies in the specific language of the Bill.
It is a truism of politics, well known to the Founders, that if the
language of legislation “allows” a bureaucrat to do something to further his
authority he will do it.
So, once
again, let’s all read the Bill in its entirety. If
the Bill becomes law, the language---not supporters’ claims---will set the
parameters for the growth of government under CARA’s premise of sacrificing
private property. The specific
language of the Bill poses a clear and present danger.
I.
DISPELLING, HOPEFULLY ONCE AND FOR ALL, THE “WILLING SELLER” MYTH, CARA
PROVIDES BILLIONS FOR CONDEMNATION OF PROPERTY BY
BOTH FEDERAL AND STATE GOVERNMENTS
In
the words of Alice during her Adventures in Wonderland, it gets
“curiouser and curiouser” why CARA supporters continue to claim that the
Bill authorizes property acquisitions only from “willing sellers.”
Why do they refuse to acknowledge that the specific language of the Bill
provides for condemnation of land and water when the owner does not agree to
sell? The only logical
rationale is that they know that the American people do not favor adverse
condemnation of land by the government. By continuing their false “willing seller” claim, they
hope to escape the people’s rejection of this massive program of condemnation.
CARA
supporters obviously do not expect the American people, or in fact some members
of Congress, to read the Bill. Relying
on the technique of the advertising world, they endlessly reiterate the
“willing seller” claim, and the “main stream media” accepts the claim.
On July 27, 2001 an Idaho Statesman (Boise, Idaho) editorial
chastised Representative Mike Simpson (R-Id.) for opposing CARA, and stated:
“Under the legislation, lands…can be purchased only from willing
sellers. Conservation easements can
be obtained only from willing landowners.”
But
Section 205 of HR 701 provides now, as it always has:
“(2)
WILLING SELLER REQUIREMENT.---The Federal portion [of funds] may not be used to
acquire any property unless---
(A)
the owner of the property concurs in the acquisition; or
(B)
acquisition of that property is
specifically approved by an Act of Congress.”
(Section
205, page 28 of HR 701, lines 18-24; actual text attached as Attachment
1)
Let’s
assume, for the sake of argument, for the next few paragraphs that the
“concurs” language in (2)(A) actually describes a “willing seller.”
It does not, but let’s assume for now that it does.
The language of (2)(B) still provides for condemnation when the land or
water owner does not “concur” with the
sale. The language establishes an
“either or” format: either the
seller “concurs” or the
government condemns the property under authority from Congress.
The word “or” cannot be defined as “and,” except perhaps by a
Chief Executive skilled at weaving fact from fiction.
So, it
simply is not true that the Bill allows acquisitions “only from willing
sellers.” In fact, section
205 further provides that the Secretaries of Interior and Agriculture will
transmit to Congress, each fiscal year:
“a
list of the acquisitions of interests in lands and water proposed to be made
with the Federal portion [of funds] for the fiscal year.”
The list is
required to include the following:
“(B)
In preparing each list [of acquisitions] the Secretary shall—
. . .
(iv)
identify those properties that are proposed to be acquired from willing sellers and
specify any for which adverse condemnation is requested;”
(Section
205, page 30 of HR 701, lines 4-7, text attached as Attachment
2)
Why require
transmission of a list requesting “adverse condemnation” actions if
acquisitions are limited to “willing seller” scenarios?
Obviously, the language does not limit governmental land grabs.
The language contemplates and authorizes condemnation of land and water.
That fact is further corroborated by the language contained in Section
10, the so-called “Protection of Private Property Rights” section which
provides:
“(a)
SAVINGS CLAUSE.---Nothing in the Act shall authorize that private property be
taken for public use, without just compensation as provided by the Fifth and
Fourteenth amendments to the United States Constitution.”
This is the
standard and traditional language of only the involuntary type of sales
transaction: a “taking,” a
“condemnation,” an “adverse condemnation” of private property.
The combination of this requirement that compensation be paid for
condemnation, with the language of Section 205, makes it clear beyond the shadow
of a doubt that CARA authorizes and focuses on condemnation of land and water.
As an aside of interest, isn’t it commendable that the authors of HR
701 included language stating that the Act would follow the mandate of the
United States Constitution?
The
language of the Bill should put to rest the claim that land and water
acquisitions will be “only from willing sellers.”
But, the myth goes on. The
fact that it goes on should worry all of us---even beyond the limits of private
property concerns. Americans, busy with their own life problems, often rely upon
their favorite “special interest” organizations for information about
proposed legislation. Any time
hundreds of such organizations can be conned into urging the American people to
accept legislation on a premise as false as the “willing seller” claim, our
rights are in clear and present danger.
The CARA
focus on governmental grabs of land and water is not confined to Sections 205
and 10. The Bill encourages states to acquire property, and supplements their
financial ability to do so.
Section 206
provides for funding from the Land and Water Conservation Fund only to those states which establish a “dedicated State land
acquisition fund that is funded through the State’s budget process.”
So, the federal funds will be used to supplement
state funds allocated to buy up private land and water rights.
Since Section 205 does not require the states to even consider whether
the seller “concurs” with the sale, states are free to condemn property at
will with their budget enhanced by CARA.
States are
also encouraged to buy up private land and water by provisions of Title IX of HR
5548 which was passed by Congress during its last session and enacted as Public
Law 106-553. This Title was
enacted as part of the “lite CARA” compromise near the end of the session.
So, one
cannot detect the full impact of CARA on private property by simply reviewing
the current HR 701. Rather, one
must follow the trail which begins in the language contained in section 301 of
HR 701. It states that the purpose
of CARA’s Title III, “Wildlife Conservation and Restoration” is to “ensure adequate funding of the Wildlife Conservation and Restoration
Planning program established under the amendments to the Pittman-Robertson
Wildlife Restoration Act…enacted by H.R. 5548 as introduced in the 106th
Congress and enacted, by reference, by Public Law 106-553.”
The patient
researcher, following this trail from Section 301 of HR 701, will discover a
Bill setting the “appropriations for the Department of Commerce, Justice, and
State, the Judiciary, and related agencies for the fiscal year ending September
30, 2001, and for other purposes.” Not
exactly where one might reasonably expect to find CARA programs.
Further
patience leads one to page 164 of a 247-page bill (as printed from http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&docid=
f:h5548ih.txt.pdf) and to a Title called “Wildlife, Ocean and Coastal
Conservation.” There we find
Section 902 which states that the Title is intended to “encourage” states to
participate with the federal government and with non-government wildlife
organizations to implement such programs as the following:
a.
“periodic or total protection of a species or population”
b.
“reintroduce individuals of a depleted indigenous species into
previously occupied range”
c.
“improvement of areas of land or water adaptable as feeding, resting or
breeding places for wildlife, including acquisition of such areas or estates or
interests therein.”
(Section
902 of HR 5548 containing appropriations for “Department of Commerce, Justice,
and State, the Judiciary, and related agencies for the fiscal year ending
September 30, 2001, and for other purposes,” text of section is attached as
Attachment 3.)
Section 902
specifically authorizes states to use the federal funds for
“acquisition…of
habitat” for species protection and conservation programs. Section 205 of the
current CARA bill, combined with Section 902 of HR 5548, facilitates federal and
state buy-outs of land and water---by condemnation when desired.
Congress has already enacted the program for state acquisitions (by
passing HR 5548) and now is simply funding that program with Section 303 of
CARA.
In spite of
protests to the contrary, it is patently obvious that CARA authorizes and
focuses on condemnation of private property.
With that fact behind us, now let’s examine the question of whether the
language of Section 205 purporting to describe a “willing seller” really
does describe such seller.
As already
pointed out, under the heading of “Willing Seller Requirement,” Section 205
refers to transactions in which the property owner “concurs
in the acquisition.” Is an
owner who merely “concurs” with a sale a “willing seller?” The answer provided by courts throughout the land is
“no.”
The term
“willing seller” is a standard term used in matters relating to transfer of
title to property, and it is governed by a standard of being free from pressure
of any type. The term has not been
judicially interpreted to mean simply a concurrence by the seller to transfer
title.
For
example, in Estate of Sears v. Sears, 178 N.E. 2d 240 (Ohio 1961), the
Court described a “willing seller,” a “willing buyer” and “market
value” as follows:
“Market
value traditionally has been defined in Ohio as ‘the fair and reasonable cash
price which could be obtained in the open market, not at forced sale or
under peculiar circumstances, but a voluntary sale as between persons who
are not under any compulsion or pressure of circumstances and who are free
to act; or in other words, as between one
who wants to sell and is not compelled to do so and one who wants to
purchase and is not obligated to do so.’”
178 N.E. 2d
at 243
The key
element in the standard by which one determines whether a seller is
“willing” is not that the seller agreed to sell, or “concurred” in the
sale, but that he “wanted” to sell, and was under no “pressure of
circumstances” which influenced his decision.
The Ohio Court stated the test in terms which are utilized generally
throughout jurisprudence. In Estate
of Harry Morrison v. Idaho State Tax Commission, 98 Idaho 766, 572 P.2d 869
(1977), the Court stated:
“Ordinarily
market value is defined as the price at which a hypothetical seller, desiring
to sell the property but being under
no compulsion to do so, and a hypothetical buyer, desiring to buy the
property but being under no compulsion to do so, would agree to exchange the
property. [citations omitted] The
essence of this definition lies in the symmetry between the selling and buying
party – it is assumed that there will be both a seller willing to sell and a
buyer willing to buy the property in question, neither of whom is under any
compulsion to enter into the transaction.”
572 P.2d at
873.
Members of
Congress are aware of this accepted definition of “willing seller.” Those
who drafted CARA used the term in the title for the subsection dealing with
acquisitions: “Willing Seller
Requirement.” Why, then, did
they not use the term “willing seller” in the body of the subsection? Why wasn’t the Bill drafted to read as follows:
“(2)
WILLING SELLER REQUIREMENT.---The Federal portion may not be used to acquire any
property unless---
(a)
the owner of the property is a willing seller…”
More
importantly, if the supporters want to continue to make their “willing
seller” claim, why don’t they amend the Bill now?
Why have they decided to characterize their seller in terms of merely
concurring with a sale, instead of using the standard terminology:
“desires to sell and is under no compulsion to do so,” or “wants to sell
and is under no compulsion or pressure of circumstances.”
Use of the
simple phrase “is a willing seller” would bring into play the traditional definition, with which all courts are familiar, as a
standard by which government acquisitions could be measured.
When such a simple method for describing a “willing seller” is
available, but is not used, natural suspicions arise that the government
purchasers will not be looking for the true “willing seller.”
Rather, they will be looking to owners who are distressed by restrictive
government regulations, and who are facing financial crisis because of
restrictive government regulations.
Species
patrols funded by federal and state agencies can initiate lawsuits which squeeze
owners of private property to the point of breaking.
Then government and non-governmental conservation groups can swoop down
on property owners like those in the Klamath Basin who are facing ruin as a
result of litigation filed under the Endangered Species Act.
It is reported that offers of $2500 per acre are being made for purchase
of the farms where owners are facing bankruptcy.
The offered
price would not begin to provide for the future of the farmers and their
families. But, in order to escape
certain financial ruin, some of them may “concur” or “agree” to sale of
their property. Do they “want to
sell?” Are they free of “any
compulsion or pressure of circumstances?”
No. Are they facing a
“forced” sale, a sale under “peculiar circumstances?”
Yes. So, will they be
“willing sellers?” Under the
law as generally stated throughout the United States, the answer is “no, they
will not be willing sellers.” But
the government purchasers can claim as to each purchase that they have complied
with the law and acquired property only from an owner who “concurs” with the
transaction.
A Klamath
farmer may be “forced” to sell to the highest bidder, “no matter how low,
inadequate, or unfair he might feel the price to be.”
His financial plight will “attract bargain seekers and…the seller
[will have] lost all control over the sales price.” Such circumstances have been held to take a sale out of the
“willing seller” category. See State
ex rel. Rounds v. Board of Review of the Town of Union, 143 Wis. 2d 891, 421
N.W. 2d 117 (Wis. App. 1988) But, under Section 205 of CARA, he would be
considered “willing” if he accepted the offered price.
The spectre
of forced farm, ranch and timberlands sales under circumstances not of the
landowner’s making has long been recognized by the courts.
In Sierra Club v. City of Hayward and Soda, 28 Cal. 3d 840, (Cal.
1981), the California Supreme Court stated:
“As
the urban fringe approaches, the farmer’s land becomes valuable for
residential development. His taxes
are therefore increased, although his income is likely to shrink as more costly
practices must be undertaken both to avoid interfering with his new neighbors
and to protect his crops, livestock, and equipment from their intrusion.
[citations omitted] Often the farmer is forced to sell his land to subdivision
developers, sometimes long before development is appropriate.”
28 Cal.3d
at 850
The land
and water owner is caught in the same trap when the pressure emanates not from
developers but from the government and non-governmental conservation groups
applying the “species squeeze.” In
Klamath Basin, the pressure results from an Endangered Species lawsuit in which
a federal judge ordered irrigation water turned off.
Representative
Simpson (R-Id.) responded to the Idaho Statesman editorial in a guest
opinion column printed on July 31, 2001. He
pointed out that:
“…farmers or ranchers who are forced to sell their land under the
duress
of environmental lawsuits and regulations resulting in severe economic hardships
are not truly a ‘willing seller.’ . . .
Last
month, I attended a congressional field hearing in Klamath Falls [Oregon], where
I heard firsthand from farmers faced with the possibility of becoming a
‘willing seller.’ Lawsuits by
environmental groups over the endangered ‘sucker’ fish have cut off water to
1500 farms in the Klamath Basin. These
farmers want to continue farming as they have done for generations, but
they’re being squeezed into a box where they have no alternative other than to
become a ‘willing seller’ in order to protect their families from financial
ruin.”
Ironically,
even though Rep. Simpson opposes CARA, and for good reasons, even he assumed
that the Idaho Statesman editorial board is “correct that the current
version of CARA contains private property safeguards requiring purchases only
from ‘willing sellers.’” This
statement from a staunch foe of CARA caused the author to retrieve the most
current version of HR 701 to be sure that the language of condemnation has not
been eliminated. It has not!
Section 205 still authorizes condemnation and requires the Secretaries to
submit a list of proposed adverse condemnations to Congress each year.
The United
States Supreme Court has pointed out, in U.S. v. Clarke, 445 U.S. 253,
the hardship which condemnation and regulatory taking actions thrust on property
owners:
“When
the government takes property without initiating condemnation proceedings, it
‘shifts to the landowner the burden to discover the encroachment and to take
affirmative action to recover just compensation.’
Even
when the government does not dispute its seizure of the property or its
obligation to pay for it, the mere ‘shifting of the initiative from the
condemning authority to the condemnee can place the landowner ‘at a
significant disadvantage.’”
445 U.S. at
255, 257.
CARA
supporters do not want the American people to realize that billions of dollars
will be made available for condemnation of private property. They do not want the American people to understand that these
billions of dollars can be used to initiate condemnation proceedings which are
emotionally traumatic and financially costly to the private property owners.
They do not want the American people to understand that these billions of
dollars can fund regulatory takings which force private property owners to
initiate costly legal proceedings to obtain compensation for their lost
property.
So, they
play the “willing seller” card. And,
they play it…. and they play it. They
persuade the special interest groups. They
hope that the public will not read the Bill and see the light.
SPECIAL
NOTE: During House Committee on
Resources open markup session on July 25, 2001, several amendments were offered
which would limit the condemnation authority as currently stated in the Bill.
Representative Thornberry introduced an amendment which would restrict
use of funds to acquire land through condemnation.
The amendment failed by a vote of 21 to 16.
Other private property protections offered by Representatives Pombo,
Otter, Walden, and Cubin were also defeated.
The supporters champion their “willing seller” claim, but reject an
attempt to limit condemnations. The
message is clear!!
II.
CARA TAKES THE ADVERSE IMPACT OF THE
ENDANGERED SPECIES ACT TO A NEW, HEIGHTENED LEVEL.
This Bill
provides for state programs of species protection which will extend the adverse
impact of the Endangered Species Act well beyond its current wide parameters.
Private property owners have been hard hit by application of the ESA
directly to their property, and indirectly through restrictions placed on land
use of adjacent property. Now, batten down the hatches!
The
Wildlife Conservation and Restoration Program to be funded by CARA will provide
the funds to state fish and game commissions to do the following:
1.
Reintroduce species such as wolves and grizzly bears;
2.
Provide “total protection” of “any species or population”
regardless of whether the species is a sensitive, threatened or endangered
species under the ESA, and regardless of whether it is a game species;
3.
Buy up private property to create habitat for any species;
4.
Cooperate with and contract with federal agencies and non-governmental
conservation groups to extend state programs;
5.
Develop a “comprehensive plan” which must meet guidelines set by, and
be approved by, the Secretary of Interior.
The reader
will not find all these elements of state “enlargement” in HR 701. They were tucked away into Section 902 of HR 5548 introduced
in, and passed by, the 106th Congress.
As already explained, these provisions were passed as part of the “lite
CARA” compromise and included in the Bill which appropriated funds for the
Departments of Commerce, Justice, State, Judiciary and “related agencies.”
This
technique of stashing away vital portions of a program in a seemingly unrelated
Bill is not new. Unfortunately, it
is quite common. Many recall how
the Quincy Library Bill relating to natural resource use in central California
was enacted as an amendment to an Indian land lease authorization relating to
lands in the Dakotas. How does the
ordinary, hard working citizen keep up with, and review, the actual contents of
a program when the “main Bill” may not contain the entire program? Of course, he or she cannot.
And, that may be the point of it all!
At any
rate, we know where the Wildlife Conservation and Restoration Program resides:
in Title IX of HR 5548 which is now Public Law 106-553.
Without specifying the details of the program, Title III of CARA simply
funds the Program.
Section 902
of HR 5548 provides in subparagraph (a)(1) that the purpose of the Act is to
fund state programs to protect:
“a
diverse array of wildlife and associated habitats, including species that are
not hunted or fished, to fulfill unmet needs of wildlife within the States in
recognition of the primary role of the States to
conserve all wildlife.”
Note the
lack of limitation; the funding applies to unlimited species, “all
wildlife.”
Section 902
(a)(2) states that the Act is designed to “assure sound conservation policies
through the development, revision, and implementation of a comprehensive
wildlife conservation and restoration plan.”
Section 902 (2) defines “conservation” policies to be funded as
follows:
“…the
use of methods and procedures necessary or
desirable to sustain healthy populations of wildlife, including all activities associated
with scientific resources management such as research, census,
monitoring of populations, acquisition,
improvement and management of habitat, live trapping and transplantation, wildlife damage management, and periodic or total protection of a species or population, as well as
the taking of individuals within wildlife stock or population if permitted by
applicable State and Federal law;”
Property
owners---land and water---can envision the species patrols which will be
activated in order to implement such programs, and in order to spread the impact
of such programs to every inch of private property possible.
It will not be difficult at all to devise a project to include
“transplantation” of a species so that it moves into private property, then
the project will provide the requirement of monitoring and census-taking on that
private property, followed by the declaration of “protection” of the
species, and then the squeeze of the “willing seller” who is left with
property he or she cannot use. Ah,
but remember, the state need not even be bothered with whether the owner
“concurs” to a sale---the state can move right to acquisition either by
direct condemnation or inversely by regulatory restrictions.
When
supporters tell you that such invasive tactics are not within the purpose of
CARA, remind them of the Klamath Basin, the Bruneau Hot Springs Snail (in
Idaho), the Spotted Owl, and a whole host of other species activities undertaken
for the sole purpose of adversely impacting private property rights.
Remind them of the project planned for the Darby in Ohio.
Section 902
(a)(3) states that one of the Bill’s purposes is to “encourage state fish
and wildlife agencies to participate with the federal government, other state
agencies, wildlife conservation organizations and outdoor recreation and
conservation interests, through cooperative planning and implementation of this
title.” Pay special attention to
the fact that the Bill does not “encourage”
participation by and cooperation with private land and water owners or local and
county governments which will be hit hardest by the plans developed and projects
implemented. Section 902 does
provide for “coordination to the extent feasible” with “local agencies”
in the development of a state comprehensive plan, but the feasibility
determination is left to the discretion of the state agency.
And, the “coordination” is required only with those local agencies
“that manage significant areas of land
or water within the state, or administer
programs that significantly affect the conservation of species…”
Those limitations eliminate most county governments. Again, there is no requirement of “coordination” with
private property owners or organizations of such owners.
So, using
the “encouragement” of dollars supplied by taxpayers, “wildlife
conservation organizations” that have furiously fought the interests and
rights of property owners will be involved in the planning for, and
implementation of, all the programs listed in Section 902.
This is certainly a most frightening thought for property owners, and for
the county governments which have to furnish services to those owners.
It should
also be a frightening thought for all hunting and fishing enthusiasts whose
national organizations have jumped on board the “CARA express.”
They may look longingly at the millions of dollars which will be made
available through this pork barrel. But,
they should be thinking about the restrictions on all outdoor activities which
the Audubon Society or the National Wildlife Association can bring about through
their “cooperative planning and implementation” role, shored up by federal
dollars. They should be thinking
about how conservation organizations have fought open access, and about the
shut-down of access which can be accomplished through “total protection of a
species or population.” They
should be mindful of the access which is available throughout the nation today
because of the availability of private property and the cooperation of owners.
When the vise is tightened under this Title, and unwilling sellers decide
to “concur” with a sale, private property---private access---will disappear.
SPECIAL
NOTE: At the House Committee on
Resources open markup session on July 25, 2001, Representative Otter presented
an amendment which would preserve rights-of-way by restricting the termination
of rights-of-way through acquired lands. The
amendment was defeated by a vote of 19-15.
The “access message” to outdoorsmen should be clear!!
Section
902 (4) defines “wildlife” as “any species of wild, free-ranging fauna
including fish, and also fauna in captive breeding programs, the
object of which is to reintroduce individuals of a depleted indigenous species
into previously occupied range.”
The Bill also provides that the state, which receives funds for such
projects, can contract for management of the projects with the federal
government or with wildlife conservation organizations.
Not much more needs be said about the impact of such an organization
contracting to manage, or even being involved in the implementation of, a
project to “reintroduce” species into “previously occupied range.”
Section 902
contains a subsection entitled “Wildlife Conservation and Restoration
Programs.” That subsection
provides that for a state to receive funds under this program, it must
“submit” to the Secretary of Interior “a comprehensive plan” that
includes a five- year strategy for development of “wildlife conservation
projects” which give “appropriate consideration to all
wildlife.” The comprehensive
plan is subject to the approval of the Secretary, and when that approval is
given the vault doors are thrown open. For
the past 60 years we have all watched the attachment of federal “strings” to
funds supplied by the federal government. There
is no grant, no contract, no distribution of federal funds not encumbered by
“strings” tied to a goal of federal management.
SPECIAL
NOTE: At the House Committee on
Resources open markup session held on July 25, 2001, Representative Pombo
offered an amendment which sought to grant 100 percent of the Land and Water
Conservation Fund money to the States without federal intervention.
The amendment was defeated 24-16. Supporters
do not want to diminish the potential for federal intervention, and expansion of
federal power and authority. That
message is clear!!
The hold of
the federal government on the states which participate (and all will most likely
participate in order to get “their share”) is provided for throughout CARA
and its auxiliary (Title IX of Commerce et al.).
Section 4 of HR 701 requires that each state receiving money from the
CARA fund will annually report, “in
accordance with regulations prescribed by the Secretary” of Interior.
The scope of those “regulations” is left to the Secretary’s
discretion. Throughout the Bill and
its auxiliary appears the requirement that states can obtain funds under the
various Titles only after a plan has been approved by the Secretary.
Can there be any doubt that the “regulations” issued for the
development of those plans will further the federal agenda?
If that is not the case, it will be a monumental first.
The
enticement for state participation in the enlargement of governmental authority
and encroachment on property rights is of course the millions of dollars
available to each state over the next 15 years.
The federal impact on state activities is heightened by the Bill’s
requirement that federal funding will be a supplement to the state’s own
appropriations, not a substitution of funds.
Section 8 of HR 701 provides that:
"No
state or local government shall receive funding under this Act with respect to a
program unless the Secretary is satisfied that such a grant will be so used to
supplement and, to the extent practicable, increase the level of State, local,
or other non-Federal funds available for such program.”
CARA
provides the opportunity for creation of 50 state species protection programs
which will dwarf the impact of the ESA. It
provides the opportunity for development of state programs through contracts
with the federal agencies and with conservation organizations which fall outside
the oversight of state legislatures. It
provides a virtually unbridled opportunity for opponents of private property
rights to arm themselves for the final assault, particularly on critically
vulnerable agricultural property and inholdings.
III.
VAST INCREASES IN GOVERNMENT-OWNED PROPERTY, OR PROPERTY PURCHASED FOR
RESTRICTIVE CONSERVATION NON-USE, WILL HEAVILY IMPACT INHOLDERS, ADJOINING
PROPERTY OWNERS AND COUNTY COMMUNITIES.
The
language of the Bill makes it apparent that a central focus is acquisition of
private property by federal and state government, and by non-government
conservation organizations. The
property acquired with CARA funding will be removed from its natural,
traditional use, particularly when the prior use is agricultural in nature.
Motivations
for acquiring vast expanses of property in such manner will vary:
--urban
officials will seek parks, ball fields and open spaces,
--opponents
of livestock grazing, mining, logging and recreation uses
will seek to retire land and water from such uses and close access,
--urban officials will seek sources of water,
--conservation extremists will seek to remove human habitation
and
uses of the land in order to set aside wildlife reserves and
wilderness, closing access.
No matter
the motivation, the victims of the assault on private property ownership will be
the property owners squeezed into sacrifice sales, inholders and owners of
property adjoining that which is acquired by the government or conservation
group, and the county communities which depend upon a stable, but limited, tax
base and upon the vitality of the property owners in those communities.
The
California Supreme Court described in Sierra Club v. City of Hayward, supra,
the experience of any farmer who finds urbanization creeping in on his or her
land, and then surrounding it. Land
uses are dictated by such surrounding uses.
If the
encroaching use is urbanization, the residents who move in will object to the
sounds and smells of natural resource industries.
Federal and state regulations will restrict traditional methods of
fighting weeds and natural enemies of agricultural commodities, such as spraying
for pests, because of the nearby residences.
If the
encroaching use is restrictive conservation of habitat for some “protected”
species, the land use of inholdings and adjoining land will be restricted in
order to avoid harm to the protected area.
SPECIAL
NOTE: Members of Congress see the adverse impact on adjoining property to be a
real, not speculative, problem. On
July 25, 2001, Representative Pombo (R-Ca) offered an amendment entitled
Protection of Rights in Non-Federal Property From Federal Acquisition of Nearby
Lands, designed to assert the property rights of inholders and owners of lands
adjoining federal lands. The
amendment failed by a vote of 22-17.
Congressman
Pombo is squarely on target in trying to protect inholders and adjoining
property owners. The Bill does not
provide such protection. Rural
America has witnessed the proliferation of federal and state regulations and
restrictions which accompany government land purchases and habitat designation.
Supporters of CARA point to the provisions of Section 10(b) as
establishing adequate protection against enlargement of federal regulations:
“(b)
REGULATION.---Federal agencies, using funds appropriated by
This
language is no more than a wisp of smoke to cloud the issue.
It provides no protection. Virtually
every Act of Congress providing for management of federal lands by a federal
agency contains language which authorizes the agency to take actions necessary
to protect the federal lands. Using that process, the federal agencies can apply their
protective regulations because they are “authorized to do so” by the
particular management Act.
Courts have
advised us that under such protective provisions of law, the federal government
has the power to control land use on private land which adjoins federal lands.
See Camfield v. United States, 167 U.S. 518, where the United
States Supreme Court confirmed the government’s power to abate fences on
adjoining private land; United States v. Lindsey, 595 F.2d 5 (9th
Cir. 1979), where the Ninth Circuit Court of Appeals confirmed the power of the
government to cite and punish persons who built a campfire on non-federal land
adjacent to a national recreation area; United States v. Arbo, 691 F.2d
862 (9th Cir. 1982) where the same Ninth Circuit court ruled that the
government could criminally charge a person with interference with a federal
Forest Service Officer even when the interference occurred on non-federal land
adjacent to federal land; and Free Enterprise Canoe Renter Association v.
Watt, 549 F. Supp. 252 (E.D. Mo. 1982) where the federal district court held
that the National Park Service could prohibit the use of state roads for canoe
pick-ups within a federal Scenic Riverway.
Moreover,
federal acts such as the Clean Water Act and the Environmental Protection Act,
and the administrative regulations issued thereunder, are being used to restrict
uses on private property. Those
Acts, as well as the particular management act governing the management agency,
will be used to restrict inholdings and adjoining lands.
In
addition, the provisions of CARA present the federal agencies with the
opportunity to expand their regulatory restrictions without acquiring land, thus
evading the limited effect of Section 10(b).
CARA will finance establishment of state species programs (including
purchase of habitat) to extend species protection beyond the limits of the
Endangered Species Act. States are
encouraged by the Bill to enter into cooperative management agreements with the
federal agencies to implement such species protection plans.
The federal agencies can (and if a bureaucrat can, he or she will)
seize the opportunity to extend ESA regulations to private property through the
cooperative management plan with the State.
Thus, Section 10(b) is evaded.
Inholders
and adjoining property owners who have easements, rights of ways or other access
agreements will lose their access if it is not protected by the sales
transaction documents. Purchasers
who want to restrict land uses will not be inclined to continue access
arrangements if the inholders and adjoining property owners are engaged in land
use inconsistent with the purchasers’ aims and goals.
An inholder who logs his or her own timber property may be denied access
to remove cut timber; an inholder who grazes livestock may be denied access for
movement of the stock.
SPECIAL
NOTE: Members of Congress recognize this as a real, not speculative, problem.
Representative Otter (R-Id) offered an amendment on July 25, 2001 which
would protect rights of ways by restricting termination of rights of way through
lands acquired with use of CARA funds. The
amendment failed, but 15 members voted in favor of it.
The Sweethome
decision exposed private property to impact from the Endangered Species Act.
As the species protection attack on property expands through 50 state
programs funded by CARA, the impact on private property will mushroom.
As the state or federal agencies buy property for species habitat and
protection, adjoining property will be immediately subjected to restrictions.
As land use
restrictions, legal or practical, result from encroachment of conservation uses,
the value of inholdings and adjoining properties will decrease dramatically.
Such decreases will reduce the tax base for county government which
furnishes the most critical of government services to local constituents.
Each acquisition of private property by the government will also
adversely impact that tax base.
It is no
answer to county governments for the supporters of CARA to flaunt the PILT
(payment in lieu of tax) provisions of the Bill.
County officials, and the people of county communities, know that PILT
payments do not make up for the economic and social loss which occurs when a
property owner sells out. As Rep.
Simpson (R-Id.) said in his opinion column in the Idaho Statesman:
“Whenever
the federal government buys a farm or ranch, it no longer
provides a piece of the economic engine that is the lifeblood of our
rural communities. While the
landowners may be compensated, the community’s residents lose jobs, and the
local hardware store, feed store, implement dealers and other merchants lose
business and may be forced to close their shops.
In addition, the county loses tax revenue, and schools and roads are
affected to an extent never fully compensated by federal PILT payments.”
The
Chairman of the Board of County Commissioners for Owyhee County, Idaho, Hal
Tolmie, agrees in a Declaration filed in an administrative appeal from a grazing
decision which threatens the continued livelihood of a ranch family:
“The
University of Idaho [has conducted a study of social cohesiveness in the
ranching communities of Owyhee County which has] found that the ranchers in the
Pleasant Valley and Jordan Valley areas of Owyhee County provide a critical
social cohesion for the entire community. I
know the ranchers in the areas. They
provide critical community services such as service on school boards, volunteer
fire fighters, employees of the school district, volunteer emergency medical
technicians, and volunteer youth coaches….Owyhee County depends upon volunteer
services such as these in order to provide critical services which cannot be
funded from the ad valorem tax which is raised from the small tax base of the
county.”
(Declaration
filed in Appeal of Re Gusman Allotment, IBLA 2001-271, 2001-272)
Owyhee
County is one of the many rural western counties in which the federal government
is already the main landowner. Owyhee
County is a large county, but only 17% of the land is privately owned and on the
tax base. The federal government
owns 76% of the land in the County, and the state of Idaho owns 6.7% of the
land. Owyhee County’s
Commissioners oppose CARA because of the severe impact which the County would
experience if CARA funds are funneled into buy-outs of ranchers who have had
enough of BLM’s efforts to restrict grazing to the point of virtual
elimination.
The
prospects of huge CARA buy-outs faced by Owyhee County are shared by all rural
counties. The particular ranch
industry problems experienced in that County take the form of wetlands problems,
game reserves or scenic throughways in New York, Ohio and West Virginia.
Each time land use is restricted, the limited tax bases of the rural
counties are impacted.
A shameful
example is seen in Custer County, Idaho. Custer
County lies within the Sawtooth National Recreation Area in rural, central
Idaho. The enabling statute which
created the National Recreation Area stated Congressional intent that no more
than 5% of the private land in the Area could be purchased in fee simple by the
federal agency. In spite of that
mandate, the Forest Service has purchased, in fee simple, 17% of the private
land in the area and is still buying. The
Service has more than tripled the amount of acquisitions of private property
authorized by Congress.
Congress
appropriated the funds, and expected the agency to follow their instructions.
That did not happen. The
funds were spent, but the limitations were ignored.
Why should we expect any different result under CARA?
Except that the impact will be multiplied by billions of dollars spent
over a 15-year period. The agencies
know that Congressional oversight is so delayed that their acquisitions will be
complete before anything can be done about it.
Once the purchases are made, Congressional oversight is worthless.
The process established by Section 205 for Congress to review a list of
proposed acquisitions will not solve the problem.
That list will be reviewed during appropriations time, and will be given
about as much attention as were the large number of treaties lumped together for
consideration and ratified by the Senate by
voice vote at the end of the last session.
A member of the Senate leadership did not know that the desertification
treaty so critical to the western states was among those treaties when he voted
for them.
But back to
Custer County. The removal of
private property from the tax base of this slightly populated county endangers
continuation of critical county services. In
addition, the purchase of scenic easements by the government further depletes
the county’s revenue. The tax
potential for all private property covered by these easements is frozen at a
much lower level than the potential valuation, and corresponding tax rate, would
be for developed land. Revenues are
reduced for the county, the school district and all other local taxing and
service districts.
The county
assessor and a former assessor provide an example of the adverse impact:
The owner of an 11.5-acre parcel, an avowed opponent of livestock grazing
who purports to be a dedicated conservationist interested in a sound and
beautiful environment, sold a scenic easement to the Forest Service for
$306,000.00. He paid no tax to the
county or school district from the sale price.
The terms of the easement prevent any additional development of the
property, even though three additional residential sites could have been
developed without in any way interfering with the scenic aspects of the National
Recreation Area. The former assessor estimates that the three development lots
and buildings would have raised the assessed value from the current $230,000 to
nearly $2 million. From the
property tax of approximately $13,000 that would have been levied on that
valuation, the school district alone would have received $6,428 in revenue per
year. With the easement placed on
his property and no development, the owner pays only $2,351 in total property
tax, with only a portion of that going to the school district.
(It is interesting to note that the owner, the avowed conservationist,
could have voluntarily refrained from developing his property, refused to take
the $306,000.00 for something that he believed would benefit the environment,
and paid his fair share of the local tax. Expect
this scenario to be repeatedly played out as CARA is implemented.)
The
particular problems facing the western rural counties, i.e., the large
landholdings by the federal government, have been specifically advanced by CARA
opponents. Senator Conrad Burns of
Montana opposed CARA in the last session of Congress, stating that “Under the
surface of everything hidden on the dark side of government, is that government
ownership of land has not been all that successful.”
Section 211 of CARA makes special provision for Montana, including a
requirement that property acquisitions with federal funds be “de minimis.”
No such concessions have been made to the other western states which are
plagued with the federal government as majority landowner.
SPECIAL
NOTE: At the House Committee on
Resources open markup session on July 25, 2001, Representative Walden (R-Or)
offered an amendment which would require approval by a State of federal
acquisition of land in a State where 50 percent or more of the lands are already
owned by the federal government. The
amendment was not agreed to, with the vote 15 for and 15 against. The message is clear that it will be very difficult to get
any relief from the Congress for the economically strapped rural counties in the
west.
Representative
Barbara Cubin (R-Wy) offered an amendment which would limit acquisitions of
property by requiring no net loss of private land.
The amendment was rejected by voice vote. Again, the message is clear that western rural counties can
expect no relief from CARA’s debilitating provisions.
IV.
MAKE NO MISTAKE, CARA DOES N
Supporters
of CARA tout the presence of protection of private property rights.
Ray Kreig has been advised by congressional staff that the choice is
between funding of land acquisitions through normal appropriations channels or
by way of CARA. The suggestion is
made that at least with CARA there is property protection.
Not so.
Section 10
is boldly entitled “Protection of Private Property Rights. "The first paragraph is called the “Savings Clause,”
and it states that “Nothing in the Act shall authorize that private property
be taken for public use, without just compensation as provided by the Fifth and
Fourteenth amendments to the United States Constitution.”
So, all the clause does is say, in effect, “This Act does not replace
the language of the Fifth and Fourteenth Amendments to the United States
Constitution.” Of course it does
not, and it would be invalid if it did. It
provides no protection other than what is already provided by the Constitution,
protection that exists with regard to any other act of Congress:
When land is condemned, it must be paid for.
But, to say
that the property owner will be justly compensated when his or her property is
taken against his or her will is not the type of protection being sought by the
person who wants to hold on to, and use, private property.
We have seen that the United States Supreme Court has recognized in Clark
that condemnation thrusts undue trauma and expense upon the landowner.
Section 10 does not relieve that hardship.
The second
paragraph provides that federal agencies may not apply regulations on “any
lands or water until the lands or water, or an interest therein, is acquired,
unless authorized to do so by another Act of Congress.” The supporters would have you believe that this section
protects inholders and owners of property adjoining federal acquisitions from
the spread of land use restrictions to their property.
We have already inspected this claim, and found that the paragraph is
part of the “smoke and mirrors” CARA game.
The last clause is the deceiver: other acts of Congress already make it
possible to spread regulations and their restrictions.
Next on the
“protection buffet” is Section 205 and its purported limit of acquisitions
to “willing sellers.” The study of the language set forth in Part I should
make it apparent that the language does not limit the inevitable forced sales
and condemnations which will result from unleashing $45 billion to hungry
federal and state agencies, as well as conservation agencies.
(Reports are that one of the leading conservation agencies has been
publicly counting on receiving millions in CARA funds to perform their handiwork
on the coastal properties along the eastern coastline.
Fire Island residents cannot rest easy with the private property
“protection” provided by this Section or any other in the Bill.)
So, we are
lead to Section 210 entitled “Water Rights.”
This Section fails to state that “all existing water rights are
preserved,” or that “Nothing in this Act, and no project funded with funds
provided under this Act shall effect or invalidate existing water rights.”
That language would provide some protection.
And, that type of language is well known to Congress---particularly to
the western Congressmen who have been lured by the Siren’s Song sent forward
by CARA’s dollars. That type of
protective language has been used for decades to protect existing rights from
intrusion by new legislation. But,
it isn’t here, and its absence speaks volumes about the intent of this Bill.
Section
210 protects from pre-emption or invalidation such matters as:
State
or federal water law or interstate compacts governing water use; The rights of a
state to any appropriated share of any body of water; ederal or state law or
interstate compacts “dealing with water quality or disposal” No non-federal
conservation agency is conferred any water right.
Not one
word of the section relates to protection of private
water rights of the individual. Authority
of the state is given some protection; but there is nothing to protect existing
and vested private water rights. Not one word protects existing private water rights against
encroachment and intrusion under some cooperative management agreement reached
between the state and federal agencies to use water for game refuges or habitat
protection for any species.
All the
so-called property protection sections of the Bill are illusionary.
Protection of water, and the cost connected, will be left to the
individual property owner who will also be paying the cost of the assault on his
or her water rights.
V.
CARA CROSSES THE FINE LINE SEPARATING THE LEGISLATIVE CONSTITUTIONAL AUTHORITY
FROM THE EXECUTIVE.
It is
apparent that CARA unconstitutionally delegates legislative authority to the
executive branch of government.
The
Constitutional checks and balances provided through the separation of powers are
a cornerstone of our liberty! Montesquieu
said: “When the legislative and executive powers are united in the same
person, or in the same body of magistrates there can be no liberty; because
apprehensions may arise lest the same monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner.”
The English commentator Blackstone shared the opinion: “In all
tyrannical governments, the supreme magistracy, or the right of both making and
of enforcing the laws, is vested in one and the same man or one and the same
body of men; and wherever these two powers are united together, there can be no
public liberty.” (Blackstone, Commentaries,
Bk.1, chap. ii, p. 146)
If the
executive branch is given the authority to “make” law, and to “enforce”
law, the people have no check on executive power.
The Framers of our Constitution understood this principle of government.
As Mr. Justice Frankfurter said in a concurring opinion in Youngstown
Sheet & Tube v. Sawyer, 343 U.S. 579 (1951):
“The
Founders of this Nation were not imbued with the modern cynicism that the only
thing that history teaches is that it teaches nothing. They acted on the
conviction that the experience of man sheds a good deal of light on his nature.
It sheds a good deal of light, not merely on the need for effective
power, if a society is to be at once cohesive and civilized, but also on the
need for limitations on the power of governors over the governed.
To
that end they rested the structure of our central government on the system of
checks and balances. For them the
doctrine of separation of powers was not mere theory; it was a felt
necessity.”
In the main
opinion in Youngstown Sheet & Tube, written by Mr. Justice Black, the
Court pointed out that Article I, Section 1, of the Constitution provides that
“all legislative powers” are vested in the Congress, and none are assigned
to the executive. He pointed out
that the “Founders of this Nation entrusted the lawmaking power to the
Congress alone in both good and bad times.”
This much
is clear: Congress makes the
laws. The President and his
executive officers enforce the laws. But,
the line between making and enforcing can become imprecise.
Federal
District Judge Thomas Hogan attempted to plot the line in City of New York v.
William Jefferson Clinton, 985 F. Supp. 168 (D.D.C. 1998) where he held the
Line Item veto to be unconstitutional because “it impermissibly disrupts the
balance of powers.” He pointed
out that it is within the constitutional legislative power of Congress to
“delegate certain rulemaking authority to other branches,” but not to
“delegate its inherent lawmaking authority.”
Recognizing
that the “line between permissible delegations of rulemaking authority and
impermissible abandonments of lawmaking power is a thin one,” he pointed out
that the United States Supreme Court has held that:
“The
true distinction…is between the delegation of power to
make the law, which necessarily involves a discretion as to what
it shall be, and conferring an authority or discretion as to its execution,
to be exercised under and in pursuance of the law.”
985 F.
Supp. at 180 citing Hampton v. United States, 276 U.S. 394 (1928).
Analyzing
the actual content of the Line Item Veto Bill, rather than its intent, Judge
Hogan then found that Congress had surrendered to the President “an inherently
legislative function, namely, the authority to permanently
shape laws and package legislation.”
He decided that the Line Item Veto Bill gave the President the power to
“expand to that of ‘co-designer’ of the law,” and that such power of
design is strictly within “Congress’ domain.”
How does
CARA fit within this picture? Congress
will provide $45 billion to be doled out of the Treasury over the next 15 years
at the discretion of the Secretary of Interior, for projects legislative in
nature and not yet designed by Congress or any legislative body. CARA
is the funding mechanism only. The
law regarding land uses, species protection, wildlife restoration projects, and
all other projects in the land control package will be shaped by the Secretary
of Interior. He will design and
approve proposals legislative in nature. He
will package legislation to shape the outdoors and land and water use policies
for this nation for the next 15 years. The
nature of this Bill places it within the parameters set by Judge Hogan: the
Congress is delegating to the executive branch “the authority to permanently
shape laws and package legislation.” That
is an impermissible delegation of legislative authority.
Section 902
of the Commerce, et al appropriation (CARA “auxiliary”) declares its very
purpose to be the creation of “sound conservation policies” by means of
developing, revising and implementing a “comprehensive wildlife conservation
and restoration plan.” (Sec 902 (a)(2))
Development
of “policies” which will set the parameters for land and water use –
federal, state and private – is inherently legislative.
The Clean Water Act, the Environmental Protection Act, the Endangered
Species Act, and countless other environmental and conservation programs have
been established by Congress as legislative packages. CARA provides an enormous outline for executive packaging and
shaping. CARA encourages the
Secretary to allow state executive (“fish and wildlife”) agencies to
participate in shaping these legislative programs, so only the legislators will
be left out of the shaping process. The
Separation of Powers as proclaimed by the Framers will be turned on its head.
Section 902
allows the Secretary to pay the states to develop, revise and implement
“wildlife conservation and restoration programs” for all wildlife species
which include the following:
(a)
influence the “distribution and abundance” of any species selected by
the state;
(b)
determine and take “actions” to conserve all selected species and
their habitats; and
(c)
taking “conservation actions as appropriate to respond to new
information or changing conditions.”
These
elements mirror the content of the Endangered Species Act, except that they
extend the potential protection to all species.
But, the most basic difference is that the ESA was legislatively created,
and Section 902 programs will be executively created.
The Line
Item Veto only allowed the Executive to delete certain legislative
proposals, yet was found unconstitutional.
CARA allows the Executive to create and add programs inherently
legislative in nature.
Such
delegation should not stand scrutiny under the analysis of Judge Hogan.[1]
Citing Field v. Clark, 1443 U.S. 649 (1892), Judge Hogan points
out that the legislature has authority to…
“make
a law to delegate a power to determine some fact or state of things upon
which the law makes or intends to make, its own action depend.”
985 F.
Supp. at 180, citing 143 U.S. at 694
CARA, and
particularly the Section 902 CARA Auxiliary, delegates not only the power to
make the determination of when the law should apply, but also the power to
design, shape and create actions to be taken.
The Constitution “refutes the idea that [the executive] is to be a
lawmaker.” 985 F. Supp. at 181,
citing Youngstown, 343 U.S. at 587.
Congress
can avoid violating the Separation of Power clause by simply refusing to enact
CARA. If it persists in its current
course, we must attempt to overturn this Act.
CARA
supporters claim that all the faults found with CARA are insignificant.
They claim that Congress has already established entitlements to the
extent that a large portion of the budget is off-line.
They claim that millions are already spent for land acquisitions.
They claim that Congress has consistently failed to protect its
appropriations power.
They assert
that CARA should be enacted because it is supported by Governors, Mayors and
national associations representing cities, counties and sporting groups.
Such support illustrates how CARA begins to unravel the threads which
bind the American tapestry. The fact that so many organizations can support a wholesale
attack on private property makes it clear that a fundamental base of our
heritage is in clear and present danger.
In his 1964
Acceptance Speech, after being nominated as his party’s presidential
candidate, the late Senator Barry Goldwater said:
“We
Republicans see in our constitutional form of government the great framework
which assures the orderly but dynamic fulfillment of the whole man as the great
reason for instituting orderly government in the first place.
We
see in private property and in economy based upon and fostering private property
one way to make government a durable ally of the whole man rather than his
determined enemy.
We
see in the sanctity of private property the only durable foundation for
constitutional government in a free society.”
What would
he see in CARA? A frontal assault
on that “durable foundation” critical to a free society.
Never has
there been such a broad-base effort to put private property in government hands.
If property owners do not rise in opposition to CARA, over the next 15 years we
will see a steady erosion of our “durable foundation” in the disappearance
of private property.
If rural
Americans, in particular, do not rise up, we will see agricultural, natural
resource oriented traditions of rural America give way to urban concepts of
“open space,” e.g. structural areas maintained at taxpayer cost.
CARA
supporters delightedly point to all that they can achieve through spending 45
billion federal dollars. But,
property owners know, as Senator Goldwater knew: “The government gives nothing
to its citizens that it does not first take from them.”
Against
overwhelming odds, Americans must forge ahead to resist CARA. When it sunsets in 15 years, it will be too late to ever
restore the constitutional foundation of private property.
As the
noble members of the Light Brigade, CARA opponents must not be “dismayed” by
numbers. The poet said of the
Brigade: “Boldly they rode and well.” Let
the same be said of those who undertake to stem the CARA tide.
Many have
asked the question. Try the
following: Call your Congressman and ask him or her to tell you why:
Section 205 provides for
a concurring seller rather than a willing seller
Section 205 allows condemnation
and provides that the Secretary will submit a list of proposed
condemnations, if in fact all purchases are to be from “willing sellers”
Why the federal
government needs more property, and why state governments need more property
How the Bill specifically
will protect inholders and owners of adjoining property
Why the federal
government sees it necessary to provide funds to protect all species
How much will it cost to
maintain the property which is acquired by the government
How
will established rights of way across private property be protected when
property is purchased by the government or a conservation group
Why does the bill not include specific language to protect “all existing water rights
Add to this
list as you review the language of the Bill.
And, ask your Congressman to point to specific language in the Bill
which backs up his or her answers.
BACKGROUND
Fred
Grant is a native of Nampa, Idaho. He attained his B.A. from the College of
Idaho in 1958, majoring in History, with specialization in Constitutional
History and Law. He then attended the University of Chicago School of Law. He
served as Law Clerk to Chief Judge Brune, in the Maryland Court of Appeals.
He
first worked as an associate at Lord, Bissell, and Brook; a Chicago law firm
representing Lloyd's of London. He continued to practice law in the District of
Maryland, where he was an Assistant United States Attorney.
He
later became Assistant State Attorney of Baltimore, and then Chief of the
Organized Crime Unit, State's Attorney of Baltimore. He spent his remaining time
in Baltimore involved in criminal defense.
Grant
has since returned to Idaho where he is an expert on land use issues. He is the
owner of Fred Kelly Grant Ltd., providing consulting services in personnel and
land use, and legal research. He is also consultant to Owyhee County Natural
Resource Committee and to the Board of County Commissioners regarding Land Use
Planning for the federally managed lands in the county.
Grant
has been a consultant to Stewards of the Range since 1997 and currently serves
on Stewards Board of Directors. He is also Chairman of Stewards Litigation
Committee.
PUBLISHER INFORMATION
Liberty Matters, American
Land Foundation and Stewards of the Range are national property rights
organizations whose members would be directly affected by the Conservation and
Reinvestment Act of 2001.
Reprint permission is granted
in whole or in part with attribution to Liberty Matters, Stewards of
the Range, and American Land Foundation.
Contact Us:
Stewards of the Range
707 E. United Heritage Court, Suite 150
(208) 855-0707
fax: (208) 855-0763
e-mail: stewards@stewardsoftherange.org
website: www.stewardsoftherange.org
American Land Foundation
700 West Lake
Taylor, TX 76574
(512) 708-8083
fax (512) 708-8298
Liberty Matters
P.O. Box 1207
Taylor, TX 76574
1-800-847-0227
fax (518) 725-8239
e-mail: libertymatters@aol.com
website: www.libertymatters.org