Property Rights Foundation of America®

from the Sixth Annual New York State Conference on Private Property Rights
November 16, 2002, Albany, New York

Land Grab by Conservation Easement
J. Zane Walley, The Paragon Foundation, Alamogordo, New Mexico

Thank you. By the way, you've boiled it down to one pot of beans that I'm just an activist. This is what we do. I have been writing about the problems that we have for a long time and have been reaching quite a circulation with them, but I found out we can kind of go back to Crosby Stills Nash and Young. They had this little song called "A Thousand People on the Street a'singing Songs and a'carrying Signs." Let me tell you, we need media attention and you get media attention by creating events. You create rebellions. You create rallies. You create things that the media cannot turn down. It is so enticing to them.

For instance, there was a little thing we just did down in Florida — we ran a goat for county commissioner. We called him "the constitutional goat." We dressed him with a little flat hat and his horns sticking out of it, and we had billboards made with his picture on it and tee shirts. There are a lot of folks now that feel like both the D's and R's let us down. The elephants and the donkeys. So they might as well vote for a goat, anyway. But we had a luncheon platform, we had a bluegrass band singing. The media can't refuse stuff like that. It's called creating media events.

I've got to tell you, we can talk endlessly, we can write endlessly, we can reach a limited market. So what we have to do is to put it on the ground, put it on the street, get out and do it. It is amazing what kind of attention you get and how many people will sit back there in their chair looking at ABC or NBC and say, yeah, I understand what those old boys are saying, what those ladies are saying. So that's my specialty, generating media attention by any means possible.

That's why we called this thing the "Sawgrass Rebellion." We tried to make the connection here. We had the "Sagebrush Rebellion" out in the west where I live. I live in New Mexico. So we kind of put the words together there. I was doing a radio talk show out of Florida, and I was there with the director of the Everglades Institute, who is an environmentalist who is horrified by what is happening in Florida. He is a good guy named Jan Jacobson. It was this radio talk show, this national show, and he scribbled on a piece of paper and pushed it over in front of me and it said "Sawgrass Rebellion." Whoo! Hot line. We used it.

But, at any rate, I've been in Florida. I just got back from Florida when Carol called me. I was going to attend here and speak, but I had the chance to do a documentary in New Mexico on the problems caused by the wolf reintroduction. We've lost our deer, we've lost our elk, and we've lost our cattle. They have been decimated when the wolves have been turned loose again. Fox News is doing a documentary on that now. I don't know what the air date is, but Carol called me about two days ago and said you've got to come. So I'm sorry I don't have a fancy speech and, by the way, it is hard to follow "Robert Williams." He does kind of look like him, don't he, our distinguished professor.

Let me kind of tell you what it was like in Florida. My wife, Sarah, and I have a mobile communications unit and we call it the "War Wagon," a fifth wheel travel-trailer. We have one of the first mobile Internet dishes, which is fairly large, sitting on top of this thing. So wherever we are we can stream audio, we can stream video, we can stream articles. We had this thing parked out in the Everglades on a fellow's property. Now, living in the Everglades is a very unique experience, since I live in the high desert. What you do when you get up every morning before you go outside, you take and you coat your body and your clothing and around your ankles and everything you can with mosquito repellant, a lot of it, because of the little varmint called West Nile virus and encephalitis. You are kind of scared of getting mosquito bitten, so you coat your clothing and your body in Deet, enough to almost make you sick. Then you gingerly open the door and you've a shovel standing beside the door and you look around the door-step for the first pygmy rattlesnake of the morning and you kill it. Then you look under the door-step while still standing on the step and, if it is safe, you jump out and run around the yard and kill all the other pygmy rattlesnakes that arrived overnight. We actually had alligators and bears wandering through the yard down there. But it is private property. Okay? Those people who live out there certainly have their right to live out there. And they love it. They have an affinity for living out in the swamps like that.

In May, Paragon Foundation was approached by the Dade County, Florida, Farm Bureau and the 8.5 square mile Property Owners Association saying they had some serious problems. They were going to be flooded out. So they invited myself and G.B. Oliver, our executive director, to come down and visit with them, and we did. What we found out was pretty astounding. There is an area there, the 8.5 square mile area, where about 500 to 550 families live, and they have been living in flood conditions for years. It is so bad, for instance, that I interviewed a school teacher who had to wade out of her home in her dress a half a mile to get to a blacktop. The water was crotch deep, but understand that in the Everglades water live water moccasins and alligators and other fun creatures. Then she would get in her car, change clothes, and teach school. Multiply that by 500 families.

The Corps of Engineers decided to condemn all this property and bulldoze all of these homes. Well, they made the first run at it and a federal judge said, no, the Corps of Engineers does not have condemnation authority. So what does the Army Corps of Engineers do? In a recent House appropriations bill, they snuck language on to it to give them condemnation authority. They had condemnation authority before but only in war-time. As it is today, the Corps of Engineers can come condemn land anyplace. And they are just an agency! The farmers were concerned because of the fact that if you scrape the topsoil off, what little there is in the Everglades, the ground looks like Swiss cheese. It's an old coral bed, so it's just Swiss cheese. Wherever you put water, it instantly permeates and the water level rises. Well, as they were flooding out the 8.5 square mile area to make the people "willing sellers," and a lot of them are, they started raising the water level on the farm lands.

Dade County, Florida, is Miami, but the second largest financial factor in that county is agriculture. Man, they've got agriculture! When we were staying down there, the president of the Farm Bureau was bringing by avocados this big around. It was the darnest thing I ever saw. We are eating fresh coconut, fresh mango, fresh papaya, fresh banana, and they raise a variety of truck crops down there. Their big industry now is the potted plant industry, the things you buy at the discount lumber stores and Wal-Mart. They raise millions of those, billions of dollars worth. They're even flooding them out, because, as they raise the water table, the area starts to flood. These avocado trees are now dying off. These orchards that have been there for 50 years are dying. The mango trees are dying. Agriculture is dying there because of the flooding by the United States Army Corps of Engineers. You see, Florida has all of its water controlled by a series of canals that the Corps of Engineers put in to drain the Everglades. But now they want to re-water the Everglades. Well, that is on one side of the state.

Now, we will go to Matt's Wildlands Project. This is real in Florida. I was in the middle of it. And there is no doubt but that it's being implemented. On the other side of the state is Collier County, Florida. The largest city there is Naples. Naples is the second richest city in the world. It is incredibly, incredibly rich. The working population lives out in the swamps, but the billionaires — I visited Stephen Spielberg's place down there that he is building and, for a guy who makes his money off of escapism, he is doing real well. He has got about a square mile of beachfront there scraped off and he can build anything he wants to. But Collier County is kind of interesting. If you ever think about buying land in Florida, don't, but especially in Collier County. For instance, a few things that happened there, you'll note is the county that sued a restaurant for having too large a U.S. flag flying. They're the county that refused to allow a Marine, a retired Marine, to fly his Marine Corps flag and the American flag. In Collier County, Florida, veterans are not allowed to go to the schools and speak to the students on Veterans Day. Recruiters are not allowed on campus. If you get a yard sale permit, which is $150, you have to go through an NCIC criminal background investigation. I went to the dry cleaners to pick up my first cleaning bill. They had tacked 10 percent on my bill as an environmental impact fee. It's insanity. I mean, to me Florida is, but Collier County, because it is loaded with billionaires — I visited the home, I couldn't get in, of the broker for the Vatican. He lives there in what I can only describe as a fortress. I mean right down to the granite walls and armed guards. It is very rich down there and the affluent control everything.

So we started digging into what they are trying to do to the people there. First, they have a subdivision there of about 1,800 families, and this has never been in the Everglades but it is part of re-watering the Everglades. They decided to flood out this entire subdivision called Golden Gates Estate. They'll use the canals to artificially raise the water level which will flood the homes there. They won't be under water, but the water will be up around 16 inches over their foundations and door sills. They are really doing this. But the other thing they are doing on the remaining land that is very, very interesting, is they created mandatory conservation easements.

Okay, now how many people here understand the threat of conservation easements? If you are with Carol LaGrasse, you got to know. Conservation easements take your property value away. Before I get into that specifically, in 2001 the Rural Family Land Protection legislation was passed in Florida. Florida forever! And, Matt, that act puts 80 percent of the private land in Florida into public hands or into public regulation. I'll say that again. There is a law in Florida now, if you had Matt's Wildlands map to look at, 80 percent of Florida is going to be regulated by the government or transferred to the government. Want to buy some retirement property in Florida?

Here is who has got affected by this deal. What happens under this Florida federal program, the Rural Family Lands Protection, they insisted that the counties find areas and shut those areas down to any growth whatsoever. And in doing that they mandatorially overlay your property with a conservation easement. In this case, they call it "transfer of development rights." What does that do to your land? First of all, your property development rights are worth about 85 to 87 percent of your total property value. That's the highest and best use. So you own this land. You can't develop it. These covenants are so restrictive that you cannot cut a tree. You cannot fill in a low spot. You can't build a road. You've got land, you're paying taxes on it but you cannot use that land. It's taken from you. Period. But you still own it. Now the average deal down there is that a Mom and Pop from New York who have done their time up here and their dream was to move down to Florida and have five or ten acres and have enough land for a garden and maybe a pony for the grandkids. Okay? And so they have paid to own that land 15 or 20 years and all of a sudden without warning, whap, without notification, they are not allowed to use their own land. Transfer of development rights. Mandatory conservation easements. What else do conservation easements do? At times, when you overlay a piece of property or encumber it with a conservation easement, it leaves you, the individual, subject to the right of third party enforcement. What does that mean? Well the county is going to hold conservation easements, the land trust doesn't like the way that they are managing this conservation easements, so under the right of third party enforcement, they can go directly around a county and sue you.(1) What it does, in essence, is reduce the value of this property to nothing. People have lost it all who invested down there. And some people have made investments in large chunks of land. Their investment is wiped out.

How can they get by with this? State enabling legislation. Call your county and try to buck it and not do it and the state says if you do not do this, we will withhold $28 million in state funding from you. So they did it. We found out it has just happened in South Carolina, near Spartanburg, this initiative that's been driven by the Sierra Club. The same thing happened precisely. You had a lot of black farmers living outside of town. Some of them who had bought, their forefathers had bought, the land from their owner when they were freed slaves. So they implement the taking of their property development rights, and suddenly they can't even let their kids put a mobile home on their land. They have devalued the land.

What is property ownership? Property ownership is the badge of our labor and a badge of our work. Removed. So now we have a delightful fight brewing down in South Carolina. Involved in the fight is the NAACP, Jesse Jackson's Rainbow Coalition, and they are calling the Sierra Club "the new KKK." There was an article on that in Insight Magazine. It's on a web site called "Smart Growth Riles Black Farmers." I really encourage you to read it because it explains specifically what I'm talking about here.

So far, twenty states have enacted some sort of a transferred development rights plan and seven states are actively implementing these. I see them as the greatest threat to private property existing in the United States, and nobody knows anything about it.

So what do we do? It has to be locally driven, so the counties can say yeah or nay to it. As we found out in Florida, if you say nay to it, well we'll just keep your money. But be very aware when you hear the terms "smart growth," "rural fringe," "transferred development rights," you've got a torpedo coming your way that has a nuclear warhead. If it can take out 80 percent of Florida, 80 percent, that's their figures, not mine.

Question from floor: Who is making money out of this?

Mr. Walley: The land conservancies. What happens is once we have reduced your land value to nothing the conservancy comes in and buys it for pennies on the dollar. They flip it to the government and they make a profit.

Would it surprise you to know that The Nature Conservancy owns many oil wells, a lot of them in Florida? They are very rich. Just for The Nature Conservancy their tax return showed their assets last year at $2.8 billion, but they have a lot of shell organizations, more than we count or know about.

So we are killing the American dream. If these programs, these transferred development rights go forward, we will have no more rural America left. If you didn't dream of owning land in Florida, you probably dreamed of owning a piece of property out in the country where you could build a place and enjoy your retirement, enjoy a badge of your labors. If these things continue to evolve, then this is going to become impossible. Conservation easements. Matt mentioned in his presentation that conservation easements are part of the Wildlands Project. Conservation easements, in the Wildlands Project, are the corridors between the core areas. So conservation easements are necessary to the Wildlands Project. I used to think people were crazy to talk about the Wildlands Project. I thought and used to they'd been smoking wacky-backy, but this is a very, very real and serious thing that impacts each and every one of us sitting in this room. So what do we do?

For the Sawgrass Rebellion we had in Florida, we didn't have a lot of people there, but we did have ABC, CBS, NBC, Fox News. We didn't have Insight Magazine. We didn't have the Washington Post. We did have every piece of regional media they could muster to get down there, and they never even once mentioned that we only had about a thousand people all together passing through. They never once mentioned that. You know, they talked about what nice people, grandmothers pushing strollers, bluegrass music, you know, how good the barbecue was, you know, that these people are losing their land, and they're having a protest because of this. That's what they talked about. For once, we had the media with the exception of the Miami Herald firmly on our side. That Miami Herald called us "western radical activists," the "hard-cutting edge of racist environmentalism." Racist environmentalism. I reckon that green is a race now, so I reckon I am a "racist."

But I know everybody is getting hungry here. I am going to wrap this up by saying that the people what I have been working with in Florida are doing right now and my coalition was this. This was the first. My coalition were Cubans - they're fine Americans; Haitians; Santo Doritas, the people out of the Indies. I had old hippies in dyed shirts. I had young people with shaved heads wearing earrings. I had vegetarians. I had black, brown, Jewish, Seminole Indians, and what we had to do was persuade all these people to get together and stand together. And it happened. It planted a seed, planted a seed that's so big now that these people said, hell, we are just going to form our own county. If Collier County is going to treat us like this, we will have to form our own county.

But as we speak right now, the people that live in the 8.5 square mile area are being flooded out of their homes. As we speak right now, Dade County agriculture is dying. We have a lingering chance of winning the fight over in Collier County, but I guess what bothers me most of all is that these transferred development rights allow the governmental agencies to circumvent our constitutional rights in owning property. And there is an umbrella protection when your land is condemned and you are forced off of it. It is called 42 U.S. Code Chapter 24. It spells it all out in there. But by taking your land by regulation, instead of outright condemnation, they are managing to do this as a non-compensatory situation. They have managed to circumvent your constitutional rights and your civil rights. I think, as we get deeper into this, perhaps where the key lies is that this is a civil rights issue. We have the right to own property. We have the right to enjoy that property. But, by God, you are not going to own it and enjoy it unless you are willing to get out in the streets and stand up for it. Put it on the ground. And I thank you all for being here.

Questions and answers:

Ms. LaGrasse: Are there any questions for any member of the panel? Kathy?

Kathy Benedetto: I have just a couple of comments that I would like to make that I think augment what these gentlemen have been talking about. At the end of fiscal year 1993, 43.7 percent of the federal estate was encumbered with a conservation description of one kind or another, both legislated and regulatory. Prior to that, which was before the last administration and [they] got away [with what] they were going to do. Also, during the 1990's Dr. Reed Noss worked with folks in the state of Florida to adopt a Wildlands program for the state of Florida and that is exactly what Jay Walley was talking about. So this is a very real issue. I think there are a lot of opportunities for us and we must be pretty diligent about pursuing them.

Mrs. LaGrasse: Dr. Reed Noss's Wildlands map of Florida was actually published in Science, the Journal of the American Association for the Advancement of Science, back in '94. That was my introduction to the Wildlands Program. I thought, how amazing, this is being published in Science magazine. It was, and the map was laid out. It is one of the few places where a Wildlands map is laid out.
Are there any more questions? Ray Isaman.

Ray Isaman: Sierra Times has an excellent conservation easement article, which brought up a couple of points that I hadn't thought about. Normally, you think of conservation easements as purely restrictive of the owner's control of property, but it goes farther than that. It is not only what you can do with the property but more and more financial institutions are not financing property because they have no control over its use.

Mrs. LaGrasse: The imposition of a conservation easement, of course, destroys most of your equity in the property.

Mr. Walley: Under IRS tax code 701(h) a bank cannot lend money on land encumbered by a conservation easement unless it is willing to take a second position to the party holding the conservation easement. Thank you.

Mrs. LaGrasse: Would anyone like to ask another question of one of the panelists? Dick Voehringer.

Dick Voehringer: I think you told us that the Army Corps of Engineers has condemnation authority. Is that nationwide?

Mr. Walley: Yes sir. The rider on the Senate Appropriations Bill was very heavily pushed by the pseudo-Republicans — RINOS, Professor, Republican in name only — that in Florida gave them condemnation authority. Yes sir, they have it nationwide now.

(1) If state law and the conservation easement so provide. - Ed.

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