Property Rights Foundation of America®

Speech from the Eighth Annual New York Conference
on Private Property Rights


Matthew McKeown

Thank you all for having me this morning. I apologize that my material is not in the prepared agenda. As you can hopefully understand sympathetically, we are working very busily in D.C. these days to figure out exactly who goes where, and the Secretary had thought she was going to be able to be here until right at the very end. But I suspect she is probably in either Ohio or Pennsylvania or New Mexico or Florida today just to pick a random number of states. But God bless her for being there.

I wanted to start by thanking all of you for bringing this together. I was talking with Becky in the back earlier about how it is wonderful to hear people from states like New York and New Jersey talking about these issues. It is absolutely fabulous for persons from small towns to hear city folks talking about the importance of property rights. It is very heartening for me. I have only been here for a couple of hours this morning, but you have already been sort of an inspiration for me.

I promise, Rich, I am not going to talk like a lawyer. You know I practiced a little bit of law, but I am going to try to sound like a normal human being throughout the course of the day. Despite the fact that I am a lawyer who works for the federal government, I am going to try my very best, but, you know, what I will say in my own defense is I am a temp. I am not a career bureaucrat. I am there at the pleasure of the President, so I think that maybe puts me in some limbo category. I would like to thank Carol for putting together this dynamic presentation so far and for jamming me into your agenda. That was very gracious to do that.

Let me start by taking a poll. I am a big believer in polls and so I am going to start by asking everyone a poll question. Who in here is absolutely satisfied and perhaps giddy or thrilled with the way the federal government approaches property rights issues? (laughter) Nobody? I used to raise my hand when I asked that question, but I am not either. So there is lots of work to do. One of the things before I was a fed that fatigued me to no end about hearing feds speak at events like this was having them tell what I called Washington, DC, process stories where they would tell you things that were in the works but were perhaps never going to occur because of some impossible-to-understand dynamic between Capitol Hill and the White House or something else. I don't want to do that either. What I want to do is talk about a couple of things unapologetically in a way that will show you that good work is on the march, I believe, in the nation's capital.

I would like to start with something that I know is personally important to the President and the Secretary and that is the Healthy Forest Initiative. We have heard it talked about here earlier today. It is absolutely true that the United States Government on its forest land has been less than an excellent neighbor because of the way it has managed its land over time, but the President gets this issue. He clears land on his ranch in Crawford. He understands that to have an ecosystem that is sustainable, that is productive, you have actually got to work it. You can't turn it into a park. I have spent thousands of hours working the legalities of this because, as you know also, the management of public lands has been wrapped around all kinds of laws and regulations that make it very difficult to do anything. The reference was made earlier to getting a permit to do something on federal land. You know it is not a 20 minutes. It can in some cases be 20 years. So everything we have done in the Healthy Forest Initiative over the last couple of years with ferocious opposition from those who believe that no commercial activity should be allowed on federal land is actually moving us forward. We have quadrupled the amount of board feet we can get off of land in the Pacific Northwest under the Northwest Forest Plan. We are determined to bring that component of a balanced economy back to the states of Washington, Oregon, California, Montana, and Idaho, because it is important. It is important to keep the public forests that all of us enjoy from burning to the ground, and our professional foresters know how to do that. What we have to do and what the President and the Secretary have done, and I think it is very courageous for them to have done so, is to sort of try to move the bureaucracy out of the way to let science govern the land again. I think that is a critically important thing.

I would like to talk about something where I think there is a gulf sometimes between easterners and westerners, and that is about the subject of water. Water in the East is more abundant than in the West. I am not going to say "very abundant," because I know very well that as population pressures and other regulatory issues arise, water supply in the East can be stressed as well. I met some representatives from the City of New York who are dealing with the struggles of supplying water for the city. So I am not going to say water is abundant here and scarce in the West, but you all know that the western part of the United States is a desert that relies predominantly on reclamation water from dams to survive. Also, the law there is different; the western law states that it is the people who use water who have a property right to it. For years, people who watered cattle on public land were not given any ownership right even though it was their cattle that grazed the land. We have settled some cases this year where thousands of grazers were given an acknowledgement for the first time that if you spend the money to put cattle on public land and to create the economic activity that that industry stimulates, because one rancher creates the need for hardware stores and feed stores and schools and other things, then you can have a property right in that water. That would be the law if you were using that water for anything else in the West, so it seemed to us that should be the law for the use of that water for cattle on public land. That is a huge sea change.

Again, it was one of those issues that was bitterly fought internally over a sort of career bureaucrat mentality of saying, yeah, but that is a tool we use to enforce regulations against them. This is actually the argument they made to me in opposing what we were trying to do. I said, yes, I understand that, but the way to enforce our grazing regulations is actually to talk about grazing regulations. We will not use people's property rights as a surrogate for lawful regulation. There are regulations that govern the standards that they actually have to go along with to be on the land, but that has nothing to do with the fact that they also have a property right to water. And again, I don't expect people here to be up on the federal grazing policy. But we said, as a matter of policy, you are not going to be able to sort of try to yank people's property rights to comply with regulations. If you want to make them comply with the regulations, then actually make them comply with regulations.

I wanted to add that I thought the comments we heard earlier from Scott about the Endangered Species Act were very insightful. There is a lot of work that the Administration has been trying to do to bring some fairness back into the way the Endangered Species Act is administered. We have done that as a part of the Healthy Forest Initiative. We have done that in some areas where we have actually started to work with private property owners on how we do critical habitat designations. We had an enormous success story recently in California involving a species called the tiger salamander where the private property owners actually led the way to developing how the critical habitat was going to be designated. And that is the new way we are doing it. We just recently did that with the designation of critical habitat for a species of fish called the bull trout where we worked extensively with the property owners. I am not going to use the word "partnership" because R. J. doesn't like me to use that word, but it has been a partnership with these property owners, and that has been something that from the Secretary's perspective has been a long time coming. The statute does present enormous challenges when trying to work in a collegial fashion with the public, but we have found ways to do it.

We have changed the way we consult on projects under the Healthy Forest Initiative and in granting permits to use pesticides, and we can continue to do those things. The incentive is that the courts keep finding pieces here and there in the Endangered Species Act that they are not sure are right. As recently as a month ago in the Ninth Circuit, the court is saying that some of those regulations that we have been using are not supportable. So there is this momentum, I believe, to try to bring some fairness to the Endangered Species Act. But Rich is absolutely right. It is going to take a pretty broad coalition of people to accomplish that because there are a lot of people who believe that the Endangered Species Act sounds really good. But they don't understand that in some ways it has just become a permanent hospice care for species rather than an actual rehabilitation tool for those species and what it has become as much as anything is a permanent source of locking up land. I don't believe that was ever what Congress intended and certainly that is not the vision for the Endangered Species Act that the Secretary has. We can discuss it at your leisure. I am offering my vision of what I hope we would be doing.

The last thing I wanted to talk about is how the Secretary, unlike many of her predecessors, has a real life familiarity with property rights issues. Among her first jobs as an attorney was her work with the Mountain States Legal Foundation. They are a law firm like the Institute for Justice that specializes in representing property owners against the intrusions of the state and federal governments. So that was her introduction to some of these issues, and she came back to Washington, D.C., with James Watt, who many in the property rights community view very highly. She is an absolute champion for property rights, and she has allowed me to work on some of the things that Carol mentioned—the RS 2477 issue and for property rights advocates in the West. I don't know how many of you are here from the West, but the status of 2477 access routes is an enormous issue because those areas are among the first inholdings that were created by the United States Government. They were created in 1866, and we have never had a method for adjudicating whose they are and what rights belong to the people who claim they own them. We want to continue that work, but I will tell you that whether we can or not is entirely up to all of you.

So there is a lot we have done, and I am not going to be apologetic about it because I am very proud of what we have been able to accomplish in a very difficult environment in Washington, D.C. I also know that there is a lot more that each one of you want us to do, and I want to do it, but we can't get it done in 90 more days. So I am hopeful that you can help us, too. Thank you.

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