Property Rights Foundation of America®
from PRFA's Eleventh Annual National Conference on Private Property Rights

Organizing Against Federal Environmental Legislation that Threatens Landowners

Robert J. Smith

Well, it is a real honor to be here at Carol's conference once again. She is a pretty strict taskmaster and most folks speak maybe one, two, three times, and I consider it an unbelievable honor that I have spoken in at least eight of her eleven conferences and maybe nine. I think I might have lost count. At the very first conference I was at here in 1995, Roger Pilon was the keynote speaker. I spoke and a little-known congressman from California, Richard Pombo, was the featured speaker. He gained some national attention by speaking here and went on to become the leader of the property rights movement in the U.S. Congress and very, very nearly in the last Congress came that close to fixing the Endangered Species Act. He did pass a quite good bill in the House of Representatives, but, unfortunately, we were not able to move that bill in the Senate. There were two key Republican, so-called Republicans, on Senator Inhofe's Committee on Environment and Public Works who would not touch the Endangered Species Act or let Inhofe move it and so the bill died. Unfortunately, also, Richard Pombo was defeated because he got so close to fixing the ESA, the Greens, the Democrat, the liberals, and the labor unions threw anywhere between $2 million and $7 million—nobody knows—into his district in the last election and defeated him.

Now, hopefully, in the near future there might be a new leader like Richard Pombo who will be here at Carol's conference. There was a unknown congressman who just got elected in a special election in Georgia in the ninth district by the name of Paul Broun who has drawn a lot of attention. His new chief of staff is Aloysius Hogan, who many of you know who spoke at Carol's conference a couple of years ago. Nobody took him seriously in Georgia because he was a medical doctor and he hadn't been involved in politics. His campaign basically ran on the fact that "before I cast a vote in the United States Congress, for every vote I will look in the Constitution. If there is no authority for the federal government to do it, I will vote nay." And he won. Well, if he keeps those promises and so on, he might be up here soon.

Now, before I start my talk I would like to pay respects to someone who was at that first conference in 1995 and has spoke here and was here at many other meetings, ten of them, and with one, two, or three of her daughters each time. That is the late Sheila Powers. Many of you knew her here in this area, and she was just a wonderful woman and a great defender of private property rights. I saw her last at this conference last year, the tenth annual conference, and sadly she passed away a few weeks after that. This is our first gathering since, and I just would like to say a few little words about her. Three of her daughters, who happen to be in the back of the room—Debbie, Sharon, and Mary Ann—if you'd like to stand for a minute. (applause) Thank you.

As you may know, Sheila was a long time resident of Schoharie, long time president of the Albany County Farm Bureau, and a member and a major presence within the New York State Farm Bureau and the American Farm Bureau Federation. And she fought strongly for property rights and for family farmers and fought against zoning, comprehensive planning, greenways, fought against the Endangered Species Act, and fought against the efforts to create invasive species legislation in which the federal government would ban all plants and animals from agricultural use or whatever if they were not native to the United States, an unbelievably dangerous law coming down the line. And one thing she would do, she would stand four square for private property rights and for the principles of the Farm Bureau. Whenever any of the Farm Bureaus were showing any signs of waffling, she would show up with the New York State Farm Bureau or the American Farm Bureau Federation and she'd have their statement of principles, and she would stand up and say, "Mr. Chairman, point of order, point of order. Mr. Chairman, principle number three of our book says complete and total protection of private property rights. Mr. Chairman, what is it about complete and total protection of private property rights that you fail to understand?" Inevitably, she would find a way to stop the Farm Bureau from selling out on a bad bill or push them to support a good bill which they should. And she helped on a lot of things for a lot of friends of hers. Fred Grau, who is the sort of the unofficial head of the Pennsylvania land owners association, Fred just said to say a nice word about her and said without her there were a number of key bills over the last five or six years that were facing support or nonsupport with the American Farm Bureau Federation, and it was only because of Sheila's intransigent position on that that they were able to take the right position and the right stand. So I would just like to say that she was dearly loved and dearly missed and may she rest in peace.

Now, to go on to my talk, Roger Pilon did a beautiful job this morning talking about the basis of individual liberty in America, the American Revolution, and America as being a shining city on a hill, American exceptionalism, and the fact that the Declaration and the Constitution recognized that "we the people," that the individuals had unalienable rights that the government could not take away and the sole function of the government was to protect those rights. To a large degree that worked for some while but always the voices of collectivism, the people who don't believe in individual rights, who believe that society should be bigger than the individuals, have continued to whittle away at the rights of the people. Even American government with its limited powers quickly began to exceed those limits and to eat away at the fabric of freedom and especially to undermine and erode the very foundation of our freedoms and our liberty, which is our private property rights, and to find some ways to do something about eliminating the Fifth Amendment clause, "nor shall private property be taken for public use without just compensation." And that is where the Left, big government liberals, collectivists, Socialists, and particularly environmentalists, and Greens have directed their attack for the last thirty years.

This first came to the front and became public knowledge and first came out in print in the early 1970's, when the environmental movement was first created, was first born, and there was an obscure little agency, a government agency, that had been created in 1969, began to work in 1970, called the President's Council on Environmental Quality. This was an advisory office of the President of the United States on the environment and every year issued a report to Congress on the state of the environment.

Richard Nixon was the President during the first CEQ, and one of the senior staffers was a very green, very left wing Republican by the name of Bill Reilly who went on to do all kinds of fame including being the administrator of the Environmental Protection Agency and one of Bush I's closest friends. And while he was there, Bill Reilly turned to a former firm that he had been a summer intern at, Babcock and Associates, a big liberal Democrat firm in Chicago and contracted with three of their most liberal anti-property rights attorneys to prepare a series of books for the President's Council on Environmental Quality. The most important of those is a book that I highly recommend you try to track down and find because it is a blueprint for how the environmentalists have used their efforts in writing environmental law to destroy private property rights, to take property without having to pay for it in the United States.

The most important of the books they published came out in 1973 and was called The Taking Issue, by Bosselman, Callies, and Banta. You can find it on Amazon. I know Carol got a copy of it recently. And what they were talking about there was that there is no way we environmentalists can save or protect or obtain or get all the land in America that we want to preserve the way we want to preserve it, to create all the parks, all the wildlife refuges, all the wilderness areas, all the open space, all the wildlife habitat, and so on. They said, my goodness, if we had to pay for all this, the nation would go bankrupt. So we can't pay for it. We have to find a way to circumvent the Fifth Amendment to get around it, and so what we're going to have to do is to stop actually taking property, physical possession of property, through condemnation. We're going to have to find a way to expand, vastly expand the use of the police powers and essentially have near regulatory takings and that's how we will gain control. We'll simply say to landowners, you can't use your property. And that is what they did. And that approach first came about in 1973 with the passage of the Endangered Species Act which effectively nationalized all private lands, family tree farms, private irrigation water, whatever, by telling landowners, such as a tree farmer in South Carolina, if you harvest your own trees on your own land, simply because there's a rare woodpecker, an endangered red cockaded woodpecker, you will be fined up to $100,000 and face a year in jail for harvesting your own trees that your father planted or your grandfather planted or whatever. And then the Greens argued, that's not a taking, you see, when people said that was a taking. They said, Mr. Tree Farmer, you still own the land. Go look in your bank box. You've got the deed in your bank box. You just can't use your land. You have all the other pleasures of ownership—such as paying taxes on land you can't use—except for use.

Probably the most outrageous of the those example from the results of that was the story of 1993 in southern California when landowners were told every year, that their property is in a fire prone area. Every year the state of California comes to private landowners and says, you must clear a fire-break around your home and your barns down to bare mineral soil. If you don't, the state of California will fine you and we'll hire a private company to create the fire-break and you will have to pay that cost. At the same time that they got those letters from the state government, the federal government sent all those landowners down there a letter saying, if in the process of clearing that fire-break, you harm or irritate or scare any endangered Steven's kangaroo rats or crush their burrows, for every such example you will face $100,000 fine and a year in jail. Well, the landowners didn't know what to do. While they were trying to figure out what to do, the fires came and burned twenty-nine homes to the ground. Too bad. And that is how the Endangered Species Act worked.

One of the things that led to the unlimited power of the Endangered Species Act was that there had been two predecessor acts before it that hadn't worked well enough for the Greens. That's why they passed the 1973 act, because those two predecessor acts said, government agencies and so on must do whatever is "practicable" to protect listed species on their lands. And the Greens complained that people always said, well it is not practicable. We have other considerations, and so there was too much waffle room. So when four people in Washington, DC, who actually drafted that bill—no congressman drafted that bill—when they drafted that bill, what they did was they very carefully went through and eliminated just one word, they deleted "practicable," and so now instead of saying you must do whatever is practicable to protect endangered species, it now says you may take no action which harms endangered species and that gave that one little bill, the Endangered Species Act, unlimited power and made it the most powerful bill in the land.

Well, that's about to repeat itself now with the Clean Water Act. The Clean Water Act was passed in 1972. There were big debates at the time. In the 1950's when they were first discussing it, Eisenhower said no, this is not a federal responsibility; clean water is a local issue and must be done and can only be done locally. Richard Nixon said the same thing in 1972. In fact, he vetoed the original bill and then it was passed over his veto. And the idea was to do something about the very dirty waters in America which were unsafe for swimming, fishing, and drinking, particularly swimming and fishing, and there is a long history to that. That was largely lack of ownership to any of the rivers. They were all treated as commons, as a sink, and everybody dumped waste in there. City and local governments dumped raw sewage into all of our rivers. Industry dumped chemicals and oil into our rivers. That's why the Cuyahoga River in Ohio burned. The water didn't burn. The oil on top of the water burned. Lake Erie became dead because we were using detergents that had too much nitrogen and phosphorous in them and so it became atrophic and all the fish life died off in Lake Erie. And the idea was to mandate regulations and actions to make America's rivers swimmable and fishable once again. Part of the big emphasis was on vast expenditures for the first time for waste treatment plants, for wastewater and sewage in municipalities and localities all across the United States, and also to prohibit corporations from dumping chemicals into the water and that they must treat their waste chemicals.

Part of the question at the time was the issue of Congress' authority. Roger Pilon talked very extensively this morning about the federal government having very limited and enumerated powers. I don't think you will find power to regulate streams and wetlands and ponds anywhere in the Constitution. And so the federal government, what the Congress did is they fell back on this issue which was also talked about by John this morning, navigable waters. Because this was an old European tradition, custom, law, that came out of Europe, the concept of the public trust doctrine that there were certain waters, major riverways, the inner tidal zone, and so on that belonged to the nation as a whole and it could not be regulated to private ownership. This was necessary for a nation to survive. And this is essentially the essence of where Congress took the authority to begin to regulate waters in the United States. The Clean Water Act gave the feds authority over navigable waters of the United States. Those were the jurisdictional waters of the United States and prohibited two actions, major actions in that—the discharge of pollutants into navigable waters, that was prohibited, and dredge and fill activities of navigable waters was prohibited. And much, much progress was made, maybe sixty percent of the navigable waters were cleaned up.

But then progress slowed to a standstill because government did what it always does. Government began to expand and exceed its powers and its limits and they began to switch from cleaning up the water to using it for national land use control. They went from controlling navigable waters to controlling streams that flowed into the navigable waters and then creeks that flowed into those streams and then ditches that went into those creeks, and it began to go further and further uphill all the time. Then the wetlands and marshes adjacent to navigable waters and then the isolated wetlands and ponds far from navigable waters. The feds decided to use their constitutional authority to regulate interstate commerce in order to take over an isolated pond, a stock pond on a rancher's back yard, and how did they do that? They came up with something called the "glancing goose" test because they said as a goose migrated south from Canada to the Gulf of Mexico, it would cross over state boundaries and so that constituted interstate commerce because it might land on a farmer's pond and then a duck hunter would cross a boundary to pay to hunt ducks and you had commerce going. The next thing you knew there were massive permit delays, litigation, lawsuits, fines, imprisonments for honest citizens, and we ended up with two major Supreme Court cases.

We ended up with the SWANCC decision in 2001 and the Rapanos case in 2006. And in both cases the Supreme Court said, more or less, that navigable means navigable. Look it up in the dictionary. They said there must be at least be a clear nexus between something that is navigable and some other pond or something.

So what has happened now, to wrap this up within Carol's time limit here, the Democratic collectivists have created or are going about to perpetuate a gigantic fraud on the American people in order to circumvent the Supreme Court decisions and to give the feds total power over all water in the United States. Now they have introduced identical bills in the House and Senate to "restore" the Clean Water Act. Well that sounds like a good thing, right. It is called the Clean Water Restoration Act of 2007. Rep. Jim Oberstar on May 22 introduced his bill, which has 107 co-sponsors starting to push their critical mass. Senator Russ Feingold on July 25 introduced his bill in the Senate that has nineteen co-sponsors. Now what it does is it restores nothing. Instead, remember the Endangered Species Act. It deletes one little word. It deletes the word "navigable" from navigable waters. So now the federal government is giving itself authority over all waters of the United States.

And also one other little thing, it replaces the specific prohibitions on pollution and dredge and fill, by prohibiting all activities affecting waters of the United States.

Talk about an open-ended nightmare to regulate everything, and there are already some excellent first rate attorneys in Washington, DC, who have argued convincingly how this could easily regulate, control, and give the feds control over backyard ponds. Gary Leadsman, an attorney in Washington, DC, makes a case on how the feds now have authority over the birdbath in his back yard in Washington, DC. Heavy rains wash bird droppings and seeds out of it, they go down the driveway, down the gutter, down the sewage drain, down Rock Creek, and into the Potomac River, which is a navigable water. Look at the eaves you have, your eaves and the water gutters. Many of them have copper in them. A rain and a little bit of acid in the rain etches out the copper, the copper is a pollutant that goes in the water that goes off your house and might end up in a navigable water 500 yards away, or 500 miles away from where you live. So everybody now is aware of the dangers of this except so far an awful lot of the nation and particularly Washington is still buying the fact that it is a restoration. It is going to "restore" the Clean Water Act. But private land owners now are afraid of it. The National Association of Counties has come out against it. They recognize this can stop all counties and all local governments from doing anything they are supposed to do on infrastructure, putting in storm drains, building a bridge, expanding an airport, anything like this. Conservationists like Congressman Ron Marlenee pointed out that if he creates an artificial pond to help wildlife on his land, he could be shut down. Beyond this, there are some government agencies and government bureaucrats in Minnesota, Oberstar's home state, who say, hey, this is a good bill. But one thing they are not looking at is, once the federal government has jurisdiction over all waters, it is just a little step to nationalizing all waters. And what if continued droughts come as the planet continues to warm or something, and the federal government decides it wants to take all the water from those 10,000 lakes in Minnesota that's just going to waste and put it in giant pipelines or culverts and take it down to Oklahoma where there's a drought. This is the end of both state's rights, county rights, and private property rights.

And there are a couple of groups that are fighting this—The National Center for Public Policy Research. They have a booklet out there called "Shattered Dreams." Be sure to pick it up. It has examples of the victims. If you want to get on their mailing list, drop your business card in that glass out there. They have a coalition letter they are asking people to sign. Competitive Enterprise is doing this, and you will find a letter out there from Congressman Ron Marlenee with a newly created group in Minnesota called the American Property Coalition that was organized by former U.S. Senator Rod Grams just to fight this nationalization of all the water in America.

And the final last word here, Reed Hopper, the lead attorney with Pacific Legal Foundation, who argued last year's Rapanos case before the U.S. Supreme Court, said the new Oberstar bill could explain how even a dry well out in the Arizona desert that might have water in it once every three years is now a navigable water in the United States. He said the reason for this is the Oberstar bill authorizes regulation of all interstate waters without regard to time or location; therefore, jurisdiction could be exerted over any area over which water flows, which is to say any area on which rain falls, has fallen, or ever may fall. So that is an issue that I think you need to pay a lot of attention to. Thank you.

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