Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

Congressional Designs on Your Property Rights

Robert J. Smith
Senior Fellow for Environmental Policy, National Center for Public Policy Research;
Adjunct Senior Environmental Scholar, Competitive Institute;
& President, Center for Private Conservaion, Washington, D.C.

It's always a delight to be back up to Albany for Carol's Annual Conference, which I think is one of the most important conferences that takes place and it's always an honor to be invited back. Jason covered some of the ground I was going to cover so I'll sort of reformulate my talk.

What I'd like to do somewhat is highlight or low-light some of what has happened and what is coming up next. One of the obvious things for those of you who have been watching it is that the Bush administration has been an absolute and total disaster for private property rights and land rights, arguably worse than Clinton, Gore and Babbitt. I'd be willing to defend that argument. And from the very top down, starting with Bush himself.

Back when Bush was the governor of Texas and first exploring the possibility of becoming President, he chose his top adviser on the environment, a moderate liberal attorney with one of the top law firms in Austin, a guy by the name of John Howard, who began to advise him on how to move on environmental issues. The first thing that John Howard did was select the environmental speaker for the 2000 GOP National Convention and choose Teddy Roosevelt, IV. Now, he is purportedly a Republican but is just about one of the greenest Republicans you'll ever meet in your life. And he was a senior vice president of Lehman Brothers, a very successful company. He probably got a $5 to $6 billion golden parachute out of that, and at same time he was also chairman of the board of the League of Conservation Voters. That's the national organization that picks something called the "Dirty Dozen" each year and tries to defeat the twelve Republicans they would most like to defeat in the nation. So he was chosen by the Republicans to give the keynote address on these issues. Just doesn't make sense.

This is my experience with him on one of the Senate hearings we had on CARA (the Conservation and Reinvestment Act), the big land grab bill we had a few years ago. I had asked a question of the Senators Murkowski and, particularly, Landrieu from Louisiana. I said, you know the federal and all levels of government, federal, state, county, local own over 50 percent of all the land in the United States of America. Why are you trying to acquire more? What's your goal? You want 60 percent? 70 percent? 80 percent? What kind of thing is this all about? What are you doing, particularly when the government mismanages its lands so much? And Landrieu was sort of shocked by that. Clearly, she'd never thought in her life about how much land is owned, whether it needed more, what they would do with it. So she asked the panel afterward, "This is very disturbing news that Mr. Smith said, and I'd like all of your opinions."

Well, Teddy Roosevelt, IV, was on the panel and he said, "Senator, this is not an issue of arithmetic, mathematics or numbers. It's an issue of saving every piece of land that is important to save in America." This is the kind of guy, this is the attitude of the person that Bush and Company selected to be their spokesman on the environment.

And then, of course, we had Vice President Cheney, who is not a great defender of property rights, and particularly his best pal John Turner, a maverick black sheep rancher from Wyoming. Turner spent a good part of his career as head of The Conservation Fund, which you know is the competitor organization with The Nature Conservancy to see who can find the way to take over the most private land and then turn it over to the federal government. Since he was such a good buddy of Vice President Cheney, Cheney made him Assistant Secretary of State for Oceans and International Environmental Affairs to spread this kind of approach all over the world.

Then a huge disappointment to many of us was the selection of Gail Norton as Secretary of Interior and Lynn Scarlett as Deputy Assistant Secretary, both in theory supposed to be libertarians and they turned out to be nothing but socialists. In fact, a group of my friends sort of led by me refer to my dear friend Lynn Scarlett as "Lynn the Red." We had this great idea of private conservation and stressing the role the private sector in America has played in taking care of wild land and resources and what have you, and something that should be championed by any conservative administration. One of the first things they did was drop all discussion and talk about "private conservation" and they instead brought forth the concept of "cooperative conservation." Well, you get an idea right there what's happening. Whom are you "cooperating" with in government?

Then their mantra became "partnership." We're supposed to partner with the government? Now the last thing most property owners want is to be a partner with Big Brother. Someone said, "That's like two wolves and a lamb voting on what to have for lunch." It blurs and extinguishes what should be a bright clear line between what is private and what is government's. Indeed, one top property rights attorney who has successfully won property rights issues before the Supreme Court refuses to even use the word "partnership" and he calls them "serf-ships," arguing that a private landowner can't be a partner with the feds, at best he is a serf.

Also disapppointing is their vast expansion of the whole concept and use of perpetual conservation easements. It's been a huge thing pushed by both Lynn Scarlett and Gail Norton in Interior. Perpetual conservation easements are the antithesis of a free society and a free market. As you remember, Milton Friedman wrote about "free to choose," not "not free to choose." It's deliberately locking up land in one dominant use forever. And as you know, forever is a long time. It's bad for freedom and bad for the environment. The first thing it does it precludes all future use. It assumes that one green bureaucrat knows what's best forever for a particular piece of land or habitat. It's also bad for the environment and for wildlife because the only constant in nature is that there are no constants.

We've had example after example of this. The environmentalists were convinced that the interior forest birds, the birds of the Northeast forest, were all vanishing forever because we were cutting trees. So they went in and did an enormous amount of harm out there by passing legislation, in Maine, particularly, but also in Vermont and New Hampshire, to control what the private timber industry was doing, what size cuts they could have. You couldn't have clearcuts anymore and you had to do all this stuff and mosaics and so on. It turned out they were all wrong. When the first data came out, after 35 years of experience, the breeding bird surveys taken by the federal government generally found that the forest birds were doing quite well. And the thing nobody looked at was that the birds that were disappearing were grassland birds. Part of the reason for that is that pastures and grasslands and dairy farms all over the United States where we used to have agricultural production were in the Northeast, and almost all that has gone back to forests. That's why those birds were vanishing. And yet we're locking all this up in perpetuity. They dictated that you couldn't do all these things and that you had to protect the forest as it was. This was the wrong thing to do, but they assumed that they know what is the best thing to do.

If you're interested in that, you might check on something by a woman named Julia Mahoney of the University of Virginia. I think she's written the most brilliant paper that's ever been done on perpetual conservation easements and their problems. And then also Dana Gattuso, an associate of mine at the National Center for Public Policy Research. You can Google that on and find her paper.

In addition, we've had vast land acquisitions that have been going on under this administration. Through cooperative conservation with the federal government, the feds are giving money to states, counties and greens to acquire more land. Now there are some landowners, I have to admit, who like these programs, but these are landowners who don't have dirt under their fingernails. These are guys like Ted Turner, Drummond Hadley who owns the Gray Ranch in the boot heel of New Mexico, and particularly hobby farmers and ranchers. Doctors, lawyers and dentists want to be pretend ranchers and they get a little ranchette where they can entertain on the weekend or shoot quail. They don't need to use the land to earn a living. So they're happy to join a federal partnership because they get paid or they get tax breaks to not use land that they were never going to use anyhow. So that's a great deal for them and that's one of the scams that's been going on.

One final top green in the Bush administration has been, of course, Treasury Secretary Hank Paulson, who was head of Goldman Sachs and the chairman of the board of The Nature Conservancy. He used The Nature Conservancy and Goldman Sachs to work with foreign governments to take over private land owned by Americans and turn it over to The Nature Conservancy.

We've had this whole long list of federal land grabs going on particularly since the Democrats took over Congress, these nonstop new Wilderness Areas, National Parks, National Battlefields, National Monuments, National Heritage Areas, National Scenic Trails, Historic Trails, Wild and Scenic Rivers, and so on and on. A great number of Republicans are jumping on board. You know, "I'm a green too." Scores of these bills are being rolled into a giant omnibus bill, time after time. They go to the floor and there's suspension of rules so you have very brief, limited debate, maybe forty minutes, no amendments, and then they have a voice vote on the whole thing. So it's not even recorded on a roll who voted for these things. They get cover as a result.

Fortunately, we have a few good solid Republican Congressmen still left. Rep.Bishop is one. A person you ought to get to know is a freshman Congressman Paul Broun from Georgia, and his staffer. I recommend you get in contact with is He's set up a private property rights caucus within the U.S. House of Representatives. On these big votes on the floor, we have often ended up with only 23 to 25 Republicans voting against these massive land grabs. For one thing, we've had an awful increase in Wilderness Areas with new wilderness additions coming up all the time.

It's important to consider here that in federally designated Wilderness Areas in the U.S. now we have over 105,514,938 acres and counting. That's larger than the entire state of California plus the states of New Jersey, Delaware, Rhode Island and the District of Columbia. And there's more coming all the time. Another million will be in this plan when it gets pushed through during the lame duck session. And remember, wilderness designation prohibits all exploration and development for all natural resources, minerals or energy at a time when everybody says we are in an energy crisis. Here we have both houses of Congress and the President signing all these bills to lock up more and more areas into wilderness. And in addition to not being able to explore for minerals, as you may know, all mechanized and motorized equipment is prohibited in wilderness—no bicycles, chainsaws to clear trails after windstorms or fires, helicopter landings to rescue injured hikers. This list goes on and on and on.

I think you should consider two things. Take a look at the coming Clean Water Restoration Act, which maybe we can talk about at a break, which is an effort to nationalize all land in America that ever had water or will have water in the future. This is an unbelievably vast scope of chutzpah and land use control.

One other thing I'll leave you with is to ask you to check the for the paper we just did on T. Boone Pickens' plan to put windmills across the country. One of the things that's not included in that is that all these windmills are going to be out there in a strip from the Canadian border to Texas, but nobody lives out there. You need transmission lines to get it all to market and he's got the power of eminent domain. And he's going to be the next eminent domain king.

Thank you.

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