Property Rights Foundation of America®
Founded 1994

Property Rights Issues for the Upcoming Elections

James R. Streeter
Former Staff Director
House Subcommittee on National Parks, Forests, and Public Lands

Nineteenth Annual National Conference on
Private Property Rights
October 17, 2015
The Century House, Latham, N.Y.


Thank you Carol. Thank you for inviting me and thank you for all that you do.

When I was with the Natural Resources Committee, I was often asked for information about some of the wonderful sounding programs like protecting Civil War battlefields or creating heritage areas and I would refer people usually to Carol's web site. There are a lot of big well-funded think tanks in town, AEI — American Enterprise Institute, Cato, Heritage. And they all do good work and they all have very good people but to focus on the issues of most concern to us especially on some of the subtle threats to property rights Carol is really the best source of information.

I was asked to talk about the election. Obviously, it's an election year even though it's an odd-numbered year. If you view the press, the lead story on the news every night seems to be about the next year's election. The extension is a little too coverage because a lot of it is not really reporting on news it's one reporter asking another reporter about his opinion on something. But let's look at the elections and you're all probably better informed than I am because I'm in Raccoon Ford, Virginia, without Internet or cable or any of that stuff.

But to take the presidential campaign, I think you can say that Cruz and Paul have sort of the internal drive, the internal values that would side with us on everything sort of automatically. Okay on our issues in fact more than okay. Trump, on the other hand, I think, sees property rights as an impediment to economic development. To balance that he probably sees environmental laws the same way. But he's not a friend of property rights. He's fairly candid and open about that. The rest of the candidates are harder to read and I worry about the influences that will play on them from the groups that are sort of helpful in funding them but really not on our side. I'm talking about the Goldman Sachs crowd and groups like that. I think they will seek to have sort of a veto power on appointments that other candidates may make.

In the Senate… We'll get the Senate races. Republicans have a real disadvantage here. There are twenty-four seats that the Republicans are challenged on, that have Republican incumbents. Seven of the twenty-four are in states that Obama carried. Only one of the candidates, Iowa Senator Grassley is in a state that Obama carried but he's considered safe for re-election. The others are: Kelly Ayotte, New Hampshire; Mark Kirk, Illinois; Johnson, Wisconsin; Toomey, Pennsylvania; Portman, Ohio; and the Rubio seat in Florida. These are open Republican seats in states that Obama carried. Democrats don't have that problem. There are ten Democratic senators running for re-election and none of them are in a state that Mitt Romney carried.

In the House, I think Republicans are safe to retain control but I think there's some real issues going on as to what the leadership of the House will be, who the committee chairmen will be, what will happen on committee assignments. So, there's a lot in play in the House, even though it will stay in Republican hands. I have to say also, that simply keeping something in Republican hands is not really adequate protection for a lot of reasons. Because since the Kelo decision, almost all candidates say they support property rights. And I think they actually do believe that they support property rights. But our goal has to be to insure that there's some depth to their positions, some sense of what the real threats to property rights are, especially when those threats are cloaked in very benign language. When a program appears to have safeguards but those safeguards do not provide any real protection.

So, my take on the election is that losing friends and supporters in Congress would be devastating. But electing friends does not really guarantee property rights protection. Let me give you some examples.

Wilderness bills go through my old committee and, at least since the Republicans took the House a few Congresses ago, wilderness bills usually have language that purports to protect property rights against buffer zones. Buffer zones are areas outside a wilderness area or a park or a forest that the federal land manager thinks he needs to control in some way. The standard language now in these bills claims to protect adjacent landowners and usually has two components, neither of which is worth anything. First, the bill will say, "Nothing in this bill creates a buffer zone." And the second says that, "Designation does not preclude activities outside of the border of the area designated." That sounds good but take a closer look. Do you really think the regulators in their imperial majesty believe that the phrase "buffer zone" is necessary for them to take actions that they think they need to take to protect their treasured lands from outside threats. After all, they'll say nature does not recognize property lines and we have to protect resources on a landscape level through partnerships and cooperation. I remember the German term from a generation ago. Lebensraum comes to mind. We just need to have room to live even if that room comes from our neighbor's space. Likewise, it does not preclude external activities. The phrase does not protect property rights because the feds will say that they are not precluding any activity. They're merely regulating it. They're merely setting conditions under which the activity can take place. So, of course, you can cut trees on your property but you can't use noisy power equipment because that would intrude on the wilderness area. The sound would be a sound intrusion. Or, you can build a house but it cannot create a visual intrusion on the park or the wilderness area. So, it has to be small scale and in natural tones.

I've been told by several conservative congressmen, including Tea Party guys, something along the lines of, "I'm a strong supporter of property rights. That's why I support The Nature Conservancy. It's a private conservation organization, not government." Well, I used to get the National Park Service priority list of land acquisition that it wanted. In the past few years every single item, it's usually a dozen or so places, every single item on that list was owned by a land trust. And, of course, they're willing sellers. It's their business model and it's not private conservation. They are functioning as advance purchasing agents and by selling the land to the government they create a revolving fund for further federal expansion.

The Wild and Scenic Rivers Act has a prominent clause in it that says, "Designation does not authorize condemnation of private lands." But hidden in the back sections of the act its says, "Well, if they really need to condemn the land they can do it."

A few years ago a bill passed the House that designated the Taunton River in Massachusetts as a Wild and Scenic River. And when the bill came back, the first step is to ask for the Park Service to do a study to see whether it merits the designation and then when the Park Service reports back then Congress can act and do the designation. Well, it came back saying, "Well, you asked us to look at certain sections of the river for Wild and Scenic River and we think that merits designation but we also think there's a section of the river that goes through a downtown, run-down, abandoned-building, graffiti-walls section of Taunton, Massachusetts, and we want that to be Wild and Scenic, too." And the Park Service scientist who did that study testified before our committee. We asked him, "How can this be considered wild and scenic?" And this scientist said, "Well, if the river could talk it would say it wants the whole river to be wild and scenic." That's the state of science in the Park Service.

In the last Congress we added a provision to study the York River in Maine for possible designation as Wild and Scenic. It said, the bill we passed, said the Park Service in its study had to identify any condemnation authority it would have and to contact every affected property owner to get their written permission to include their land. The group that was pushing the designation was very offended by that language. They said, "Absolutely everyone in the area supports this designation. There is no opposition. And seeking their written permission and listing condemnation authority would confuse them." What happens on a lot of these things, it would come out of the House with our language but the Senate would take it out. And then either it would never pass or it would pass as part of some omnibus bill where we have very little control to get our provisions in.

I said that my side winning the election is not enough. It will still be a battle. For example, Land and Water Conservation Fund authorization expired at the end of September. But look at who's pushing its reauthorization and expansion — Senator Burr, Republican of North Carolina; Kelly Ayotte, Republican of New Hampshire; Lisa Murkowski, Republican of Alaska; Steve Daines, Republican of Montana. These are people who have no business pushing the Land and Water Conservation Fund. In the House there's a very similar situation where people who are ninety-nine percent of the time with us, are pushing very hard to reauthorize the Land and Water Conservation Fund.

The Land and Water Conservation Fund, for those of you who don't know, provides the money for the federal government to buy land, to buy more land. We're somewhat protected right now because Rob Bishop, my old boss and friend, is chairman of the Natural Resources Committee, a congressman from Utah, and he has said that he'll hold hearings on the Land and Water Conservation Fund but he will not move in committee a reauthorization bill unless there are major changes in it. We're still in a precarious position because the other side has a lot of commitments from congressmen. They've probably got the votes to do what they want. And I think they'll try to bypass the committee to get around Rob Bishop perhaps by adding this stuff to an unrelated bill. So, we're in good shape as far as the committee is concerned permitting jurisdiction but it's still going to be something to watch.

Oddly enough, John Beohner was very good to us in that sort of a situation partly because a good friend of his, Doc Hastings, was chairman of the Resources Committee last year and Doc would go to him and say, "I need regular order on this. I need you to promise me you're not going to allow this unless we've had a hearing, unless the committee has been able to offer amendments and change the bill." And Boehner was actually pretty good on that. The leadership in the House now is very much up for grabs. I have no real insight into what's going to happen there.

Heritage Areas are another problem because of Republican support. We have an awful lot of education work to do.

Tip O'Neill used to say of the conservative Blue Dog Democrats, "I love them all. They're always there for you, except when you need them." And I think we're in a similar situation with some of our candidates. So, what can we do? It is extremely useful to have witnesses at committee hearings who have a good story to tell. Not just the experts and the analysts but also the victims of federal abuse, people who have been put in a Catch-22. It's really compelling in a hearing to have someone tell his story. It's a little bit hard for the opposition to go after them if it's just a private citizen minding his own business and the government has been abusing him.

We also have the opportunity to educate members face to face. Members of Congress are much more accessible than people think. You don't need a lobbyist. You can get an appointment with a congressman. You can't waste their time with long-winded stuff but they actually are quite eager to hear from people. In town meetings or in private settings it's very useful to talk face to face with members of Congress to present your case. And I think there's a vulnerability that the other side has in that they are very dependent on federal funding and federal grants. A few years ago there was a big program within the Housing Authority for sustainable development. They were giving a lot of grants to local groups, all of them bad. Someone on the Appropriations Committee — because there's some tightness in the budget now, not enough but some, and they were offended by some of the grants that went out and so they cut out funding for this sustainable development grant program and the sustainable development community was all up in arms and in panic. I was getting all kinds of e-mails and alerts about what we have to do. But the provision stuck at the Appropriations bill. I noticed just a few months later that all these groups were getting funds but it was coming from the Department of Transportation, no longer from the Housing and Urban Development. So, they have this great ability, this great network of ability to provide funds but that's also a little bit of a vulnerability because they are very dependent on federal funds. The only good part about that is that they tend to be pretty inefficient.
Carol, I know we're running behind so I'm happy to cut it off here.

Audience member: I just have one question. You mentioned Steve Daines, and I'm from Montana, and others. Why do you think those particular individuals are taking the position that they're taking?

Mr. Streeter: In some cases — this was on the Land and Water Conservation Fund — it's a special local issue. In Wyoming, for example, there is some state land within one of the national parks that the state wants to exchange to the National Park and get some federal land that has oil and gas and coal on it in exchange but the valuation isn't equal so they want to use the Land and Water Conservation Fund to equalize that exchange so it can go through. In the case of Lisa Murkowski from Alaska, the money comes from off-shore oil. The funding for the Land and Water Conservation Fund comes from off-shore oil money so she sees this as a way to buy off the environmental community. Let us have our off-shore oil and in exchange you're going to get a billion dollars a year to buy federal land. So, in each case it's different. In some cases they've been approached by key people and made to commit. To some extent some hunting groups have been pushing Land and Water Conservation Fund. So, that has an effect on some of them.

There's not enough sense among Conservative Republicans in Congress, there's not enough sense of wariness about programs like that.

Thank you.

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