Property Rights Foundation of America®
Founded 1994

Land Issues Facing Congress

By Jim Streeter
Staff Director, Committee on National Parks,
Forests and Public Lands
U.S. House of Representatives, Washington, D.C.

Sixteenth Annual National Conference on
Private Property Rights
October 20, 2012
The Century House, Latham, N.Y.


Introduction by Carol LaGrasse: Jim Streeter gave me such a short introduction to himself that I'll have to speak slowly so you'll know that I'm telling you about him. He is the staff director of the House Subcommittee on National Parks, Forests and Public Lands. It's our most important committee from the point of view of land issues in the Congress. He was previously vice president for the Institute for Regulatory Science and policy director of the National Wilderness Institute, special assistant in the office of the Secretary of Interior, and chief-of-staff to Senator James McClure of Idaho. He's been extremely gracious to consent to come at the last minute. We're just very grateful to you for coming, Jim. Thank you so much.

Jim Streeter: Thank you, Carol. I realize we've all been sitting here since eight o'clock this morning and that I don't expect you to view me as a welcome font of wisdom, but rather as an obstacle between you and a stretch and a glass of beer. But I have spent forty years behind the lines, as it were, and am very grateful for a chance to talk to this group. As Carol mentioned, I work for a subcommittee of the House and it's a committee that deals with a lot of the issues that effect you, although our jurisdiction really is with public lands, that gives us jurisdiction over the Park Service, the Forest Service, and the BLM. BLM is almost exclusively a western land managing agency and our committee staff members, our committee membership, the congressional members are on the Republican side, mostly from the West. So we deal a lot with western-specific issues.

What will our agenda be when we come back into session in the period this year after the election? What happens will be determined, to some extent, by the election. We have basically two big areas that Congress has to address. The issue of extending the tax system, the Bush, so-called Bush tax cuts, and sequestration which is a sort of an automatic reduction in government spending because Congress didn't pass a budget that reduced spending to meet certain levels. And I suspect what will happen is that we will punt. We will move the deadlines back awhile rather than deal with them. But there is a possibility that we'll be able to offer some spending cuts in that process.

Federal land management. If we do any other legislation other than those, I think they will be Western issues, public land issues, right. There is the issue of funding for local government in the Western states that are two-thirds or more federal land. The localities can't tax federal lands for the school system and you can't harvest trees anymore. So the public school systems in the West are in dire straits. County governments are on the verge of closing jails and laying off sheriffs and police and so on because the economy in the public land parts of the West is just dead. And so that's something we will have to deal with. We may hold hearings. The committee has both the ability to hold hearings on legislation and to hold oversight hearings where we examine the operations of the government.

Invasive species. There's a potential that we will hold a hearing on invasive species. It will not surprise you to know that we have a program of federal spending of one and a half billion dollars to control invasive species, which, incidently, often are found on, are spread from, public lands which are poorly managed and then infect private lands. But of that 1.5 billion dollars the federal government spends to control invasive species only seven percent of that actually is spent in the field controlling invasive species. The rest is all absorbed in studies and getting ready to study.

National Park Service Concessions. Another possible hearing — it's not of great interest to most of you — is that the Parks Service operates a lot of the public services that are done by concessioners, the guides, and the people who rent canoes and so forth. And the Park Service is putting such onerous requirements on them that we're on the verge of losing their services. A lot of them are small, family run companies and they simply can't afford the kind of requirements the Park Service is putting on them. This is one of the parts of public enjoyment of the parks that is very important. I don't know how much it would bother the Park Service if the public can't use the parks.

The environmental establishment. When we get into the next Congress in January, obviuosly it's going to depend on the election, and here again we have to divide between legislative proposals and oversight hearings. If there is significant change in the make-up of federal government then I think we have the opportunity to make real changes in some of the way the federal government operates. If the election results in the status quo, we have to be a lot more creative in how we try to affect things. As you all know when you're really dealing with the environmental establishment, you're dealing with the Politburo. We like to kid ourselves that it's, you know, scruffy hippies who are climbing in trees and throwing themselves in front of bulldozers but the environmental movement today is very far from that. It's people in business suits and eighty-dollar haircuts and money and authority who are opposing us.

Setting limits. Let me give you some of the legislation for next year. I have a strong preference when we do legislation to create bright lines. If we're telling the government agency to do something, we want to specifically say, "This is what you're allowed to do and nothing more." We don't like broad delegations of authority like "Go out and do good and write your own rules and set your own limits." And that's hard to do. You have to be very careful because they're awfully good at finding language in a bill that gives them broader authority than Congress intended and the courts, because of the agenda of the agencies and some of the previous judges, give great deference to agencies in interpreting the law.

I didn't go into great detail in the biography I gave Carol but when I was working in the Interior Department I was on the payroll of Fish and Wildlife Service. I remember a proposal by a group within the Fish and Wildlife Service to do studies about how to manage populations that are not covered by the Endangered Species Act or the Migratory Bird Treaty. So that would include squirrels and rabbits and things like that. And I said, "We don't have authority to do that. You know, we operate based on delegations of power, specific laws telling us we can do it. What authority do we have to regulate rabbits and squirrels and other critters that are just, you know, local and not covered by any law or treaty?" And she said, "Well, we're the Fish and Wildlife Service. This is wildlife." And I said, "No. That's not the way it works. I mean, we have a law that says we can comment on federal development. But we don't have any management authority over skunks and weasels unless they're listed." But, you know, it shows how this was a mid-ranking Fish and Wildlife official who said, "Well, we're the Fish and Wildlife. That means we have the authority to act in that area." And you get that a lot in issues like control over land next to federal land, so that if you have a park, it should control the viewshed outside the boundaries of the park. It should have a buffer zone; so that's something we're going to pay a lot of attention to. We do that now on any park bill that passes the committee. We're very careful to specifically say that there is no authority beyond the border of the park to do anything.

Harassment by federal officials. Another bill we're going to look at relates very much to a conference that was one of Carol's conferences a few years ago. Karen Budd-Falen spoke about a case in Wyoming where she represented a rancher named Robbins who bought a ranch in Wyoming. The BLM had a right-of-way on the land but they had never recorded it, so when he bought the ranch it expired. They lost their right-of-way. The BLM official contacted the new owner, Robbins, and said, "You'll give us that right-of-way. It's not negotiable. We don't negotiate with people on that. It's essential." He said "I'll talk about it. We'll see." They were furious. And he's a wealthy guy. He was not intimidated. So the madder they got, the more set he got in not giving them the right-of-way. So they retaliated with massive levels of harassment. They did things like charging him with interfering with the operations of a federal official — a criminal charge. He got a jury trial. It was dismissed in twenty minutes of the jury trial. They kept going. They tried to get other federal agencies to work with them to try to drive this guy into giving them the right-of-way. They broke into his lodge. They filmed. He had a guest ranch program where people could accompany cattle drives. They sent crews out to photograph the people, film the people, including women when they were trying to urinate in the woods. Yes, a long list of this sort of thing. Eventually, Karen Budd-Falen represented him and he sued the two BLM officials as individuals, using the RICO law, the corrupt practices law. It went all the way to the Supreme Court and he lost on a seven to two decision. The two dissenters, surprisingly, were Ginsburg and John Paul Stevens. Two of the most liberal judges. You should all read the Ginsburg dissent. It goes into great detail about how serious these offenses were, how they should not be dismissed. The Souter decision, which really represented the real reason that he lost, was they were afraid that this would open a floodgate of litigation. And they didn't want to open that up. He also said that the issues, the legal issues, involved do not really provide a remedy for someone who is doing terrible harassment, no matter how bad it is. He's not doing it for personal gain. He's doing it for the benefit of his agency. And, yeah, therefore, the existing laws did not provide a remedy.

But, Souter said, in the majority opinion, "But Congress should give us legislation, create a remedy. The courts shouldn't have to create a remedy." I came across this when I was looking up information because one individual is also compiling a lot of the Equal Access to Justice Act examples on the amount of money the environmental groups get. Souter made that decision, I think it was 2009. I asked if there had been any follow-up to his call for a legislative remedy. She said, "Nothing has happened and we would love to see you do it." So that's something we're going to do then. I've had a couple of meetings with her and some others about how we can craft a legislative solution — a remedy — for somebody who's a victim of this kind of federal harassment where the individuals involved actually can be held liable. We have to be careful because I don't want to create a weapon the other side uses against us. I don't want somebody being personally liable because he decided not to list an endangered species. That's something I'm actually looking forward to, to working on. Incidentally, in Virginia we have an Attorney General named Ken Cuccinelli, very conservative, who is one of the few politicians who wants to build a career based on protecting property rights. And he has said in the state of Virginia he will not provide a defense for individual state employees or county employees who abuse property rights. There's an article in the Heritage Foundation book that was given out, there's an article by Ken Cuccinelli on that, on property rights.

Collusion, grants, and lobbying. Another issue I want to look at again will be an oversight hearing but will result in legislation, at least will pass the House. That is to restrict collusion between the government and conservation, private environmental groups, particularly groups that want to restrict property rights or to acquire land. I've a small, old farmhouse in rural Virginia where there were a lot of Civil War battles and right now the government is giving grants to local groups — one called the Piedmont Environmental Council. There's another one called the Moseby Heritage Area. They're giving grants primarily for the purpose of lobbying local land use planners into being more restrictive. So we're going to try to restrict that. In fact, we did that on a bill recently that is not yet law, but passed the House, that said that for the Civil War Trust and the newly created Revolutionary War Trust and War of 1812 Trust, that they cannot give grants to any groups that engage in lobbying. And then here's the important part — we define lobbying as attempting to influence any land use decision by a legislative or regulatory body or land use body. That's passed the House and it would be something of a revolution. I know Carol has had some concerns about that but I think it's really the other side that has to worry about that. Because that's really the modus operandi of a lot of groups that they pretend to be local but they are actually federally funded or funded by a national organization. They're just trying to give the appearance of being a local group. And then they come to us and say, "Well, this proposal has local support. It was a local initiative. These people asked for it." Well, you know, money was given to a group that was like-minded.

Targeting landowners. Another thing that I want to work on is what I call "the public right to know." That would be to acquire written consent for any federal agency to share information about private property with any group that has an interest in purchasing that property. Have in mind something like The Nature Conservancy and all the other groups. The government could not share information with them unless they have written consent from the landowner. You'd have to exclude giant maps and things that are available to the general public but I'm talking about things where the land trusts and the government agencies get together and target certain places without the landowner's knowledge. So I think that could really affect the way some of these places operate.

Land adjoining federal land. We are going to pay a lot of attention to the claims of authority over land adjoining federal land. We talked about buffer zones. And we do that routinely now, whenever any park or heritage area or something is considered. It's going to be very explicit language that you're not to comment beyond the border of the land you get. Actually, a lot of these proposals are very popular. You know, heritage areas preserving Civil War battle fields. We see the danger in them but very few people do. And so we operate with the knowledge that sometimes if we actually go to the floor with something and the other side doesn't want to do it and we might lose the vote, it weakens you the next time you want to do something. We hate to lose votes because that gets to be, that happens each time you lose a vote on the House floor. Sometimes you do it strategically, because you want to put things on record, but most often you don't want to be in a position of losing on the House floor.

Defunding sustainable development grants. Now there's a thing where there may be some opportunity primarily because of the budget cuts. The budget constraint is to defund specific programs. In the current fiscal year FY12, which ended the end of September, no funds were allowed for HUD to give sustainable development grants. The planning community was shocked by that. But it wasn't fatal because they're good at hiding these things and the Transportation Department immediately stepped in to provide grants for mass transit for sustainability under the guise of adopting mass transit programs to get people out of private cars and small houses that are single family houses and have sustainable communities with, well, buses primarily. Buses are the big thing. Margaret Thatcher once said that any man who reaches the age twenty-six and finds himself on a bus, should count himself a failure. But they'll deny it. You read their literature, it's all available online for all these myriad of planning agencies and it's very clear they don't want people in single-family houses. They don't want them driving cars. They want them in these tight little planned communities. I don't know why they deny it because it's so obvious. I said they're good at hiding these grants.

Border control funding mis-used for endangered species. We've also prohibited the Department of Homeland Security, the Border Patrol from giving money to the Fish and Wildlife Service as compensation for border activities. Right now there's an agreement between the Fish and Wildlife Service and the Border Patrol that the Border Patrol will give the Fish and Wildlife Service — currently it's nine million dollars but the total is like fifty over several years — as compensation for damage they do when they, for example, put up a radio relay tower in an area that has endangered species or is a wilderness area. We prohibited them from transferring that money. But they went ahead and did it anyway. They gave a lot of money to create some habitat plans in California unrelated to the border. They want money for a wildlife refuge in Texas which is unrelated to the Arizona areas where they say that the Border Patrol interfered with endangered species. And in order to allow them to proceed they had to compensate for it. So we'll look into how they were able to continue giving money when it was specifically prohibited in their appropriations.

Attacks on Tea Party groups that oppose planning. I mentioned going online to look at some of the planning groups. You'll find that they were really shocked when their sustainable development grants were cut. They've also been shocked because of the Tea Party people showing up at local planning board meetings demanding that property rights be included and that they withdraw from certain organizations that promote planning. The president of the American Planning Association — and you know this is not a fringe group, this is a big establishment group — the president of the American Planning Association said that the groups that are challenging the planners are Brown Shirts. They're Nazis. I can give you the exact quote so that you see I'm not exaggerating. The president of the APA claimed that the Tea Party, and this is a quote "would be extremely comfortable adorned in the brown shirts of its ideological predecessors in the Twenties through the Forties in Germany." [See actual quote, note 1, below.]

Another somewhat more sensitive guy named Nathan Norris, a fellow planner, said that that kind of language didn't really help us. And he has an online sight where he, sort of, is telling people how to talk to groups that are opposed to the kind of expansive and restrictive planning they were advocating. Alright, this Nathan Norris had to kick a member of our team out of a meeting with a local Tea Party because he was rolling his eyes, making other condescending gestures. Does that sound like Mr. Biden? He said we have a much better strategy for dealing with the local opposition and the property rights movement. Of the white Leftist vocabulary terms like "environmental Justice" demand that for any objections they have that they provide specifics. Demand that objectors provide specific examples of any abuse that has occurred, rather than talk generally about rights. Describe planning not as control but as actually giving the public more choices and saving them money. Not forcing people to live in single-family homes and commute in cars and to talk about how planning saves money, makes the government less costly and to talk about common sense solutions.

Common sense. Now, you know, our people talk about common sense solutions. It means absolutely nothing. Everybody thinks his solution is common sense. When I worked for the Fish and Wildlife Service we had an issue with something called the Mount Graham red squirrel which was a subspecies of a very common squirrel in the Southwest. The reason it's a subspecies, the only difference was that it has a higher-pitched chatter than the common species. The Mount Graham where the squirrel lives was selected as a site for a world-class telescope. It was going to be run by Caltech and the Vatican. So it had powerful friends. That fact that it was listed as endangered mattered because it would be threatened by this telescope. There were some very zealous, low-level Fish and Wildlife Service biologists who were determined to block this telescope using the ground squirrel. I remember meeting with them and they made the case that, you know, it's a very arid area. The squirrels eat pine nuts. The pine trees grow very slowly because it's arid and it's such a delicate balance that if we had to cut any of these pine trees the population would collapse and it would take fifty years for the pine tree to re-grow to the point where it was providing pine nuts. So my version of common sense was: Why don't you put out a bird feeder? Well, they were very much offended by that. Eventually they were overruled by the senior people in the Fish and Wildlife Service because, although they say they're only interested in the science and don't let any politics interfere with science, the telescope was supported by then Senator Dennis DeConcini, who was chairman of the Senate Appropriations Committee that provided funds, and so they, you know, reviewed the science and said, "No. It doesn't really justify blocking it."

History of federal lands. An issue we're going to defend fits in very well with what Charles Frank was talking about. The disparity in the control over federal land in the West versus the East. I think this is an issue that we have to deal with carefully simply because if you're not from the West, you have no idea what it's like. It sounds like such a radical thing to say this land should go to the states. So I think we have to lay the groundwork. We have to sort of informational hearings, scholarly hearings on how it came about that the western states are two-thirds federally owned, whereas, the eastern states, when they became states, were given the federal land. And we have to talk about ways to remedy that, have some devolution of federal authority. But I think just presenting Easterners with that idea without a historic background, without realizing the consequence, because right now a lot of Easterners just think of western land as one big national park. It's all like Yellowstone or Yosemite.

Language. The language of the debate is something we have to give a lot of thought about, how we affect that. It's changed over the years. Jon Jarvis, head of the Park Service, meets with us all the time. He talks, he's very careful about talking about how he is very much in favor of having working landscapes. He doesn't want everything to be a national park. He wants to have farms and ranches. He just wants to be partners with them. He wants working landscapes but he wants cooperative agreements with them so that they can have agreements that will allow wildlife corridors. And then everyone will benefit. We'll all be win-win.

The property rights movement. Well, I mentioned Ken Cuccinelli in Virginia; there really has been in the past year a reawakening of the property rights movement. There's been some overreaching by some of the land managers. A few years ago we were looking for witnesses. We'd call property rights people and they'd all say, "Well, I'm old and I'm tired and I fought this battle for ten years, I don't want to testify now." But that has changed in Virginia. It's changing in Utah, where there's a big rebellion going on with regard to federal land. The off-road vehicle people are threatened and they know it and they're fighting back. Hunters are part of this. There's a huge effort by the environmental establishment to get hunters on their side. So far it's not working but there are groups that the environmental left has established in various states that call themselves sportsmen. However, they're really environmentalists using the sportsmen issue. In Montana, in particular, there's a group called Montana Hunters and Fishers that is as left-wing as you can get. But it has a lot of money. This might not surprise you.

Court decisions. We will have some opportunities as we talk about budget cuts and we need to identify specific areas where we can insist on cuts. There may be some opportunities with regard to court decisions. A couple of cases are before the Supreme Court right now. One involves flooding of state land in Arkansas. But it's a flooding that was done by the federal government on purpose. The state is suing saying that that is a taking. When you flood our property, kill trees, and then let the water recede after eight months, you have taken our property. That's before the Supreme Court now. That may present legislative opportunities one way or the other, with win or lose. There's also a Supreme Court decision now that deals with the Missouri v. Holland decision from the 1920's decision. It had to do with the Migratory Bird Treaty of 1918. Missouri said that the federal government has no delegated power to regulate birds. Read the eighteen paragraphs of Article One where it lists the federal authorities. It says nothing about birds. The Supreme Court ruled that the government does have authority to enact treaties. We have a treaty with Canada there and it was from the treaty that the federal government got the power to regulate in areas that were not listed in the Constitution, specifically. That's going to be revisited by the court. And that could be a significant decision.

Experiences for hearings. I'd like to end it there just with a plea. We do need to have current examples of abuses. We need people who can testify. We need people who can give us examples of how they've been hurt by the federal government or how they've been caught in Catch-22's because we do want to have a lot of hearings. We have about two or three hearings a month, most of it on routine bills. But we're going to have some on more controversial bills, too. Thank you very much.


Notes:
1. Full quote from the President of the American Planning Association:
We all try to be so respectful of the "Tea Party" while it accords no respect for facts or rationality. So let's be honest. The Tea Party — and today's GOP as a whole — would be extremely comfortable adorned in the brown shirts of its ideological predecessors of 1920s-1940s Germany. The parallels between the two are way too similar to ignore. Never shall a fact get in the way of their distortions of the world and the way it works. We should be very afraid of this "movement" because it threatens all that is right and decent about America while it advances its agenda of friendly fascism (not that the Tea Party folk have a clue what fascism or communism are since they seem to think they are one and the same).
Daniel Lauber, AICP
Planner/Attorney
AICP President 2003-2005, 1992-1994
APA President 1985-1986
http://www.planningcommunications.com

2. Abbreviations:
AICP: American Institute of Certified Planners
APA: American Planning Association

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