Speech from the Eighth Annual New York Conference
on Private Property Rights
(2004)

Robert J. Smith

Landownership in America

Thank you. It is always an absolute delight to be up here. In the past we have had foul weather many times with heavy rain and snow, but this is a beautiful October day. Also I am delighted that I am one of the few people that I think Carol has ever had up here more than two times, and that I consider quite an honor, too.

As Carol mentioned, one of the problems with standing up as a lightening rod is that unfortunately there is lightening out in the world. So if you stand up on a lot of these issues in Washington, you can become very unpopular in a hurry.

What I want to talk a little bit about is what is going on with the ownership of the American land. If I have enough time left, I want to talk a little bit about the origins of the vast movement towards regulatory takings in this country, how we ended up in that area, since our last talk is going to wind up with that issue.

The total U.S. land area is 2,271,343,000 acres. That is a lot of land. It is a big nation. The federal government owns, manages, or controls about one third of the American land. At one time we knew fairly precisely exactly or close to exactly how much land the feds owned. For instance, in 1982 that figure was 768,532,000 acres, slightly over one third of all the U.S. But that was the year that ANLCA, the Alaskan Native Land Claims Act, was passed, finally giving tens of millions of acres of all the land in Alaska to the first Americans up there, the native Americans, and to the state of Alaska. Because Alaska is so huge, that instantly dropped the percentage of land owned by the federal government down to around 26 percent. And now one of the things we find very interesting in Washington, DC, to some degree, is that this data which you think would be pretty easy to get is almost impossible to get. It has also become a political football. BLM, the Bureau of Land Management, used to come out annually with their book on land statistics in the United States, which was pretty impeccable coverage of the amount of land ownership, who owned how much, how much the Department of Transportation owned, how much the Army Corps of Engineers owned. That stuff is no longer compiled in any one place. It is hard to get that data.

A couple of years we were trying to do a piece with the Nevada State Legislature, and I was calling everywhere to find out exactly how much land in Nevada is owned by the federal government. We know that it is probably over 90 percent. Some people have said it is 93 percent, even 94 percent. Well, nobody had that data. The state didn’t have it; the feds didn’t have it. I finally tracked down a woman at one of the BLM (1) offices out there, whose responsibility was to actually sign the checks, sign the PILT (2) checks that are given to the various counties in lieu of taxes because the government owns all that land, and she was a very conscientious government bureaucrat. She felt a moral responsibility to get that right. They deserved every penny that was theirs and they didn’t deserve a penny more, and she actually had to go out and start her own data bank because, she said, I can’t even rely on my own agency, I can’t rely on the GAO (3), I can’t rely on any of these things. As she started to gather this data, she found out about the huge land transfers in the state. When they created the Great Basin National Park in Northeastern Nevada—a big chunk of land out in the Ruby Mountains—a decade before I talked to her, it transferred all that land from by the Forest Service, where most of it had been owned, with some owned some by BLM, to the National Park Service. Over a decade later, although all three of those organizations had computers, nobody had ever even managed to figure out that perhaps it was necessary to subtract that amount of land from BLM and Forest Service ownership and add it on to National Park ownership. Things as simple as that aren’t being done. And so we are still facing this problem that we don’t really know how much land the federal government owns.

They seem to have sort of a football aspect to this. Some agencies tend to fudge the amount; others brag about it. The Department of Interior will admit that they own about one in every five acres in the United States, about twenty percent. The other day I was just going through Dulles National Airport, and there is a huge poster they have on the wall, that’s been up for awhile, advertising National Public Lands Day. The poster says, “You own 600,000,000 acres of America. You own one third of the nation. Please help us take care of it.” That is an interesting thing why you have to ask people to take care of something they own. But as I said, we can’t get accurate data.

One of the first things that happened when the Republicans took over the U.S. Congress going into the 104th Congress following the elections of 1994 was that some of the freshmen Congressmen—Richard Pombo, I guess he was a sophomore then, but a few others, including Helen Chenoweth, who was a freshman, and so on—went to the GAO and requested a study. Let’s find out once and for all who owns land, they said, how much federal land there is, how much state land there is, how much county land there is, how much municipal land there is. You can get that. It is just very time consuming and tedious, but that is what the GAO is supposed to be about. Well, they essentially punted on it. They came back with a nice study, but it didn’t have the data. They said it would be too difficult to get that data. So we still don’t know.

But we do know that what the federal government owns is around 700 million acres and rising, one third, and as you know, most of the public domain is located in the west with about two thirds of all the land in the thirteen western states owned by the federal government. But additional land holdings by state governments, county governments, and municipal governments, where land ownership has accelerated most rapidly—this is the fastest growing area of government land acquisition—brings the total land ownership of the U.S., as far as we can tell, to probably about 44 percent of all the acres of land in America. There are two or three different groups who have made some efforts at this. Some say 42 percent, some say it may be as high as 48. That shows all the uncertainty in this, but, whatever it is, it is an awful lot of land.

Even in areas that you would think the data would be so easy to get, this is not the case. Some of you may know Frank Gladics, who has been in the forest products industry. He is now the Director of Forest Issues for the Senate Energy and Natural Resources Committee. In the past, when he was doing some work on PILT payments around the country, he went to Multnomah County where Portland, Oregon, is, and he found out that they owned vastly more amounts of land than the county even thought they had. Counties don’t even know what they own.

One of the few states that has really done a careful job has been the State of Arizona, and Arizona has been noted for having some of the most free market, pro-private property rights state legislators. They demanded that the General Lands Office do a thorough study right down to getting the tax records from every municipality, every county, and so on. To everybody’s surprise, it turned out that 87.5 percent of all the land in Arizona is owned by the government. Only 12.5 percent of Arizona is in private hands. One of the ironies there is that is one of the states where there is such a big push for smart growth and stopping urban sprawl. They’ve already got the whole state; 87.5 percent of the land is desert and cactus. They can own all the land they want, but the problem is that too many fat cat Republicans have retired down in Scottsdale, bought a piece of land, put up their $3 million house and have a beautiful view of the mountains with some cactus across the street. They forget to buy the lot across the street and the next wealthy Republican retires down there, buys that lot, puts his house up, and destroys the view of the guy who was there the year before. Suddenly everybody says that there ought to be a law against this…There is too much growth in this state…We need “smart growth.” And wealthy retired Republicans end up working with the Sierra Club out there to promote smart growth.

Consider that amount of land, whether it is 42 percent or 44 percent or slightly higher. That is a staggeringly high percentage of government ownership of land and resources in a free society supposedly based on the beliefs of the founding fathers that the cornerstone of our freedom depends upon the widest possible distribution of land securely protected under a system of private ownership of property. Whether it was Jefferson or Hamilton, who were probably on opposite sides of some of the government debate of the founding fathers, they agreed on this. Jefferson wanted to get rid of all the land the government owned. He just wanted to give it away because he believed he needed everybody living on the land. Hamilton wanted to sell it all off to pay for the national debt, but they all wanted to get rid of it. The 1862 Homestead Act provided to give everybody homesteads. One of the problems there was that, since they still didn’t understand the West and the climate of the West at that time, they made the homesteads 160 acres, and as many of you know, that turned out to be a big problem when people got settled in the West, because they couldn’t live on that in areas where there was no rain. Then that began to confuse the whole issue of who should use the land or could people use the land properly. But they could have used the land properly if they had been allowed to own enough for a homestead large enough to live on and have a successful ranch or farm.

There was a most interesting observation on land ownership in America. A noted economist wrote, “The public lands of the United States exceed the combined areas of Germany, France, Italy, Belgium, Holland, Switzerland, Denmark, Hungry, and Albania.” He concluded, “Where socialized ownership of land is concerned, only the USSR and China can claim company with the U.S.” Now does anyone want to guess as to who that economist might have been? It is not Milton Friedman. I guess nobody knows. It turns out that what makes this such an interesting observation is that it was a liberal economist, John Kenneth Galbraith, whose work many of you may know or have read. The other interesting thing about that quote is that he said, “The only two countries on the planet that can claim company with the U.S. when it comes to socialized land are USSR and China. That quote was written in 1981. Guess what! The USSR is gone. Chinese collective farms are gone. It is likely the United States of American, the shining city on the hill, now has the most socialist land system of any country on the planet.

There are two observations here. One is that practically nobody knows that or understands the significance of that. And secondly, the socialization of our land is growing. It is not even slowing. It is still continuing to grow and the question is what is the purpose? Where are we going? What is the end? What is the goal? Congress neither seems to know how much land is owned by the government nor even care.

As someone that was in Washington who has testified any number of times over the past decade on National Heritage Areas and particularly on the CARA bill (4) when it came up, I’ve observed that one of the things is that the huge CARA land grab bill was pushed by hard core conservative, property rights Congressmen. These Representatives, Don Young of Alaska and Billy Tauzin of Louisiana, pushed CARA to essentially get $3 billion a year to buy up more private land. Many of the ranchers and so on in the West have been so depressed; these guys are barely surviving because there are so many environmental regulations on them now, that they can run so few cattle they can hardly make a profit. As for the way private land stands now, with $3 billion a year you could buy up just about every last ranch and small farm in the country. You wonder, then, how you run a free society and also how you run a productive society.

Anyhow, during the CARA land grab testimony, I was on the podium with the witnesses, and I think that next to me was Chuck Cushman. We also had Teddy Roosevelt IV and most of the Greens there, although he is a Green Republican, and when I brought this up, when I said, look, the government already owns 44 percent of the land in this country. Why do you want the government to have more? Where are we going with this? What is your goal? Do you want fifty percent? Sixty percent? Seventy? Eighty? Just tell us what we want to know so somebody in this country who cares about freedom and private property can know where this federal government is going. Well, the interesting thing was that, when I said that 44 percent figure, it was sort of like a slapstick comedy in a Marx Brothers movie. The ranking Democrat on the committee immediately called her staff around her. She apparently had never even thought, had never even raised the question in her mind in her whole life as to how much land the government had. Did we need more land? It was just, you know, buy up everything we want, no question of how much it was, what the accumulated impact was, or where it was going. And she was so concerned about that that she questioned the entire panel, and she said, well, what do you think about this charge if it is true? I said, I am sure it is true.

It was interesting that Teddy Roosevelt, who actually gave the environmental speech at the Republican Presidential Convention in 2000, Teddy Roosevelt IV said it doesn’t matter. He said this is not a question of addition and subtraction or mathematics. This is an issue of the fact that we must save every piece of land in America that has environmental significance. No question of what you have. That is on the record. You can find it. Now one of the things that was interesting I didn’t know until I got into sort of a debate afterwards with Senator Murkowski, who was chairing the hearings (5). After the hearing was over, Senator Landrieu was in the back of the room where the heads of The Nature Conservancy, Trust for Public Land, and all these groups were, and whispered with them. We fortunately had Brian Bishop there, who saw that. So Brian sort of backed up to hear what she was talking about and she asked him, is this true what Mr. Smith said? And he said, yeah, and it may be an understatement. She said, “My God, if the American people ever become aware of that, that could be the Achilles heels of our entire movement.”

This is one of the things that we need to do. We desperately need to make people aware of how much land there is in the country, and who owns it. You can’t have a free society, you can’t have individual liberty, you can’t have a productive society, you can’t even protect the environment well without private ownership of land. One of the things that some of us have been disappointed about in the Bush Administration is that we wish they had not shown so much restraint in halting land acquisition and so on. We wish somebody somewhere had acted like Reagan had done when he came in. He zero-budgeted the Land and Water Conservation Fund and said that we have too much government land already. Let’s take care of what we have. You remember that was also Secretary Watt’s plan. So that is certainly one thing we want to do. It would be wonderful to get back to find someone who could lead us by bringing up legislation again and think it out carefully this time to see what we can do in starting to move a bill for no net loss of private lands. There is too much government land. Freeze it now and then slowly begin to work backwards. Keep private lands in private hands.

Certainly the people in the Bush Administration know this. My goodness, Gale Norton and Lynn Scarlet, they know, they have heard all about private stewardship and private conservation. Gale Norton has said that private landowners are often the best stewards of the land. When she visited a few years ago with our Center for Private Conservation down to Thomas Jefferson’s Natural Bridge in Virginia, after she had walked through that area in the morning, she came back and said, that has been there for 250 years now. Nobody had to force these private landowners to pass a regulation for them to keep this in the same pristine condition it was when Thomas Jefferson first set eyes on it. It was in their own interest to do so and that is the good thing about private land ownership and private stewardship.

Essentially I will leave the issue here, but I want to bring up just one thing and talk about the good things that private landowners are doing, what is happening to forestry in this country, and so on. There is a whole issue of perpetual conservation easements that keeps coming up. I think it is probably one of the most dangerous ideas that has ever come up to assume that you can lock up any particular piece of land for all of eternity, for perpetuity, and know how it is going to be used. The idea is wrong because the essence of a free society, the essence of a free economy is choice. That is what every trade is about. That is what the economy is about: choice. But what you are doing with a perpetual conservation easement is precluding all future choice. If there is one constant we know about Mother Nature, it is that there are no constants in nature. Everything is changing. Therefore, even from the point of view of the environmentalists, if you really cared about protecting the environment, rather than just having national land use control, you would be opposed to perpetual conservation easements.

Just about ten or fifteen years ago everybody thought that there was so much forest fragmentation, that the forests were being cut so fast in America, that all the interior forest birds, all the neotropical birds that nest in forests, were disappearing. There was a panic that started this whole rush to getting conservation easements on all the forest land in New England, passing laws against clear-cutting, and all this kind of stuff. The data finally came out, approximately thirty to forty years of data essentially, of the U.S. Fish and Wildlife Service breeding bird surveys, and, lo and behold, they find out while nobody was looking forest birds are doing quite well, as a matter of fact. What was really in trouble was grassland birds. Now they have pretty good data on grassland birds. Seventy percent of all the birds that live in the grasslands in the United States are vanishing. One of the reasons for that, of course, is something that should have been obvious. The reason for the decline in grassland birds is that the forests are coming about all over New England. All the forests are coming back all over the Great Lakes region. They are being reforested naturally. People are planting more, people are getting out of small farming because we have mechanized farming in the West. To prove how far this has gone, there is a proposal just now that has been put before the U.S. Department of Interior that they want to list the cottontail rabbit, the common bunny rabbit in your yard up in Maine and so on, which is now a threatened species, put it on the endangered species list because it lives in little fields and the fields and meadows have all disappeared because they have all gone back to forests. That’s why you don’t want to lock yourself into one particular land restriction.

With that I would say that I just hope that we can begin to use all these groups all around the country and at least develop some sort of informal network among all of our property rights groups and foundations and centers and e-mail networks and so on so we can track what we are all doing and see if we can begin to wake up the American people on the issues that we are having with the loss of private property. Americans need to hear that the loss of private property not only discourages freedom but it ends up destroying the environment, and that we need to return to the vision of our founding fathers and have a system based on private ownership of land and resources. Thank you.

Notes and Abbreviations:

(1) BLM - Bureau of Land Management
(2) PILT - Payments in Lieu of Taxes
(3) GAO - General Accounting Office
(4) CARA - Conservation and Reinvestment Act. The proposal called for $3 billion annually for land acquisition to be set aside from federal royalties from oil drilling into a trust fund outside of the Congressional budget process
(5) CARA Hearings - CARA legislation had several reincarnations during the early 2000’s. Sen. Frank Murkowski (R, Alaska) chaired the Senate Energy and Natural Resources Committee in 2000 and Sen. Mary Landrieu (D, Louisiana) was a minority member of the committee.

For further information about the vast movement toward regulatory takings in this country, please see:
“An Overview of National Zoning and Property Rights” - By R. J. Smith (PRFA, First Annual Conference
on Private Property Rights, 1995)

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