Property Rights Foundation of America®

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

Property Rights Update from Washington, D.C.

Jason Knox, Esq.
Legislative Staffer, Subcommittee on National Parks, Forests and Public Lands,
U.S. House of Representatives

Just want to take a minute to thank Carol for having this, this is great. It's always good to find you're not the last of the Mohicans on this stuff. I know you're probably waiting in anticipation, seeing that I'm going to talk about what the news is in Congress, with probably the same excitement and anticipation as a doctor coming to tell you that you have the plague. So not to be too doom-and-gloom, what I wanted to do is really just begin with a brief recap of the 110th Congress. This is also important because it kind of lays the groundwork for what to expect.

Actually, I have suddenly become a big fan of divided government. I think that by really any measure the harm done in this Congress was a lot less than previous Congresses with a Republican House and Senate and President, just simply because of gridlock. I'm not going to say that the new Democratic majorities didn't attempt to pass as egregious and more egregious bills, you could argue otherwise. But I think what you saw, with the close substantial minorities in both the House and the Senate, was that you were able to see stuff stopped.

What I think is the best way to describe the direction this Congress took is to borrow a phrase from a Wall Street Journal editorial, describing the committee I work on, the Natural Resources Committee, what the new Chairman Nick Rahall from West Virginia wanted to do. Really it's a "green goodies" agenda. What you see is basically the environmental movement, the preservation groups, basically felt like, "Look, we have been backing you both with votes and money and we expect a lot in return and it's come time for you to give us what we want." What we literally saw was the Wilderness Society and these other groups, would literally brag that they had written, their language was put directly into, the Pelosi energy bill. Their idea of, say, taking state and federal designations and basically using them to block energy corridors, which thankfully was stripped out of the energy bill. But you'll probably see it again in upcoming Congresses. That was their concept.

A lot of the staff on the other side of the aisle that I work against used to work in these environmental groups. It's actually pretty extraordinary. There's a pretty incestuous tie.

The other interesting concept that came up, too, was that they have now found a way to label things like Heritage Areas, different wilderness area designations, or Wild and Scenic Rivers. Suddenly it's now been renamed as "economic redevelopment programs," it's "economic enhancement acts." No one envisioned that that's what these designations would be. But with a few twists of the words, they could say with a straight face, "Look, these are suddenly going to enrich all these areas." How you could lose high paying mining jobs, jobs along docks, forestry jobs and, I guess, the T-shirt industry is suddenly going to become quite lucrative. But that's really what you're seeing and we saw it time and time again.

Some of the good things, just to highlight what was done especially in the area of eminent domain with the last appropriations bill that was done in the first session of Congress. The Congressman I work closely with is a gentleman named Rob Bishop of Utah. In the void of my former boss Richard Pombo who lost, Rob Bishop has kind of become the lead in the House. With us, also, is Representative Broun from Georgia, and I'd say Adam Putnam from Florida, Bill Sali from Idaho. In the Senate, I'd add Tom Coburn, Richard Burr from North Carolina, Jim DeMint from South Carolina. They've really become kind of the last guardians of property rights.

Rep. Bishop offered up an amendment and it was later tweaked in the conference report, but, basically, it was an amendment saying that, other than the Department of Defense, any Federal agency using federal eminent domain powers has to first get permission from the authorizing committee. This is huge.

I think we especially want to move in this direction, because I think you'll see, what with reading what the new majority has said about intending to fight global warming, to fight climate change, they're going to need to basically expand federal control of land. They have mentioned more and more land acquisition. I think it's so important that we always remind them of the Kelo case. In their minds, as Kelo fades from people's minds, I think they feel that, with the general concern about the environment, that basically we can go back to large scale land acquisitions, whether by willing sellers or by outright eminent domain. I think we'll probably see that go more and more in that direction.

In the near term, one thing that I think we really have to be on the lookout for is that there's a lame duck that's likely going to come after this election. And in that, Senate Majority Leader Harry Reid has already said he wants to bring up a resources omnibus bill. This bill is 1,082 pages long and it has 160 separate provisions. I think it affects thirty or more states directly. It's probably just a Christmas tree; it's just a wish list. The threats in it are numerous. There are 65 provisions in the bill that would create a total of two million acres of wilderness, four new National Parks, ten new Heritage Areas; seventeen provisions in the bill would remove federal government from mineral leasing, oil, gas, coal, geothermal. The largest of this is a Wyoming land withdrawal, it would pull 1.2 million acres of just much-needed oil and gas areas from the ability to open up leases on these. Actually it took a Democrat, Senator from Louisiana Mary Landrieu to point out, "Isn't this roughly the equivalent of ANWR?" But that's kind of been put on the back burner, thankfully, because of the energy issue. But I think that after the elections they think they could basically come in and can roll this through.

Let's highlight a couple of things that illustrate what we're facing and build on what we've talked about as far as local zoning issues and everything. One of them in there is the Taunton River Wild and Scenic River, which is Representative Barney Frank's bill, and its just an outright attempt to stop a gas pipeline that's going to be run across the river. We've seen some interesting things with the Wild and Scenic Rivers Act. It was never meant to be used in urban areas; it was always meant to be used in areas that are fully surrounded by federal land. You would use this designation in federal land because you don't want to affect private land. We're seeing more and more that they are using these Wild and Scenic Rivers as economic enhancement acts. You're basically seeing the whole plan for Wild and Scenic Rivers being turned on its head and perverted.

The National Park Service did a study that was for a Wild and Scenic River in a heavily industrialized area in Massachusetts. When we were on the floor, Rep. Bishop said the only thing Wild and Scenic about this is the profanity and the graffiti. One of the things, mind you, that the National Park Service said they used to decide whether or not to go ahead with this designation is to ask, "What would the river say if the river could talk?" Yeah. That's kind of interesting, I don't know, maybe "I'm bloated" or "I'm retaining water." I don't know what the river would say exactly, but that's literally how extreme we are seeing various directions of these designations. I think you're going to see this shift going there; it is just this outright tossing aside of previous standards and moving ahead with this designation.

Within this designation they will be able to basically force local zoning because basically they said, "Look, if your laws aren't up to specs to protect the river"—I don't know exactly what those qualifications are—"we're going to come in and we can condemn." I want to say it's up to 100 acres per square mile. And so basically you have these local zoning authorities with a gun to their head to down-zone and to create more setbacks and everything.

The other thing that's in this bill is the National Landscape Conservation System (NLCS), and basically it's to create 26 million acres as National Park Service within BLM (Bureau of Land Management) lands. What it would do is codify impermanent law. Among other things are all the National Monuments that President Clinton and Vice President Gore did, I think, January 10 of 2000, including the Grand Staircase-Escalante National Monument in Utah and a number of places. These were designations just to stop mining activity, oil and gas exploration; these provisions would permanently lock these areas up.

We did a document request on this, and what we found from the documents that we recovered was that the environmental groups were meeting weekly with NLCS officials, career people within the BLM, to work to literally draft legislation, lobby for more money for this program and everything else. It's currently being investigated by the Inspector General. But it's part of this omnibus bill that would permanently create this office within the BLM and within Interior.

Moving ahead, what are some things that we've learned that we could use in the 111th Congress, things that we're really able to use and make progress on with the issue of private property rights? Sometimes, as strong as an argument as property rights is and as much as we believe in it, sometimes it takes another issue to stop legislation. What we've found is energy. Energy is what can stop these restrictive land use designations because what you see in trails and Heritage Areas and wilderness and everything, is that most of the time it's written into the actual act itself that they stop transmission lines and they stop corridors. They basically stop any energy development.

Although the price of gasoline has come down, it's still in everyone's minds, and I think that the public got up to speed pretty quickly that we need energy produced here in the U.S. We need a means to convey this and transmit this energy to our urban areas. That's something we have been able to build upon and the enviros basically admitted it in newspapers. They said our momentum has been stopped, because, as long as people have to pay high prices for home heating oil and to fill up their cars, designating this area over here to feel good suddenly is a lot less attractive. That's something all of us can use. When we go out and explain what these designations do, oftentimes the ulterior motive is to stop energy production, energy conveyance, energy exploration. That's something that really hits home, it's a very populist message and it's something we made a lot of traction on. That's something we really need to move forward on.

The other thing we've found, too, is a lot of these seats being contested are being won by moderate Democrats. They are much more open to listen to angry constituents because these seats are being contested, unlike, say, an Oberstar, who Randal O'Toole talked about earlier, who's going to win his seat by 80 percent. It's a very safe district. These members need to be targeted soon and fast and early.

With some of the things that I think, I could sit here and harp on what we can't do, but some of the tips can be positive. Being a legislative staffer dedicated to work on finding witnesses, I also develop floor speeches, and I also deal a lot with personal offices. One of the things you can do to help yourself is ask, does your representative or Senator know who the heck you are? I know a lot of these things are kind of self-evident, but it's sometimes good to say the obvious. I want to use Carol as an example. I get a frequent call from a New York member who shall go nameless, whose staffer calls me all the time whenever there's a trail or anything, and says, "What should we do? We have a lady in our state who really cares about property rights and we don't want to get phone calls. What could we do?" They're talking about Carol.

That's the thing, a lot of time the environmental groups come in, they have all these neat packets, "This is for our Heritage Area in Massachusetts." And they have these great colorful things, "Aren't you going to be patriotic and do our Heritage Area?" So these members of Congress, when they see stuff like this and there's no voice in opposition to these, of course you're going to go along with it. Of course you are. And so for a lot of these members these are giveaway votes. What these members need to understand is there are constituents that vote on these issues. I guess, what's difficult is so often there's very little proactive action on our side. Unfortunately, a lot of us, we're working for a living, we can't go out there and develop nice little packets like this with schemes on how to regulate other peoples' lands. We get that a lot.

We call up people to ask them to be a witness. "I have a life, I don't have a trust fund." But it is something to be said that the members don't like headaches. They don't like headaches. Even the most liberal members that want to move these land use planning schemes and stuff. There's a lady named Cinda Jones; she's the largest private landowner in the state of Massachusetts. They wanted to run a trail right through her land and she made enough noise. And, trust me, it wasn't because she was the largest private landowner. It was because she wrote editorials, she talked, she frequently called. And finally Rep. Olver, who actually illegally trespassed onto her land to investigate this trail, finally said, "What do you want me to do? I'll cut out your land."

And it's true, the squeaky wheel gets the oil. And so that's something that I think when people say all the time, "What can we do? The media doesn't care about us." You really don't need to win over the media when you can speak to the staffers in the office. And that's the other thing too. Your target isn't necessarily a member, it's a twenty-year old staffer. These people really only know what they're told. And so if they're only hearing one side, to be fair to these members of Congress, of course they'll naturally be inclined to go one way or another. But for a lot of them, frankly, the federal government controls everything, they have a lot of busy things, they're on three or four committees, so if this stuff isn't made a priority and shoved in their face then they aren't going to act on it.

The other thing, too, the environmental groups do it, we should be doing it too. That's FOIA, Freedom of Information Act stuff. It's relatively easy to do. I think you need a forced transparency on these issues because as arrogant and as open as these environmentalists and land use planners are in public, they are just as open and arrogant in their e-mails. I've seen their e-mails. They literally feel that they're in such a vacuum, such a bubble, that no one else would dispute what they say. And whenever there's state, local, federal action being done, I can guarantee you that there's a whole lot of interaction going on between the local preservationist and whomever the local bureaucrat is. You need to get that information, because the best material that you could have is their actual words. And trust me, I've seen the e-mails before. They're saying, "Show me the money." They're saying, "Property owner X." I have a piece right here: For one Heritage Area, the environmental groups basically went through and catalogued every single piece of property they wanted to put within the Heritage Area. I guarantee that they probably didn't get a lot of permission to go on peoples' property and photograph their property. But this is the type of coordination and activity that is done and this is what is going to manage this Heritage Area.

Really, I think the basic thing is to understand that, you should stop looking at the big grand scale and then just throwing up your hands. You need to look at these things project by project. You need to make yourself known with your representative and your senator, because, no matter how bad you think that they are, at the end of the day most politicians don't want headaches. So the issue is to make yourself a headache and you'll get what you need. It's not always going to happen, it may not even happen most of the time, but you need to make yourself known.

And before I close, we're always looking for people that have been victims of government planning of these grand schemes and ideas. Please come up to me later on, give me a business card, give me information. We always need witnesses at hearings because, too often, we can't get somebody there to tell the story. And that's why I come here every year, because I need people to help tell what's really going on.

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