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Federal Ownership of Lands Destroys Constitutional Protections
By Fred Kelly Grant
Al Gore has launched his presidential bid with announcement of the most blatant land grab attempt by the federal government in our history. He and Bill Clinton have announced a two-pronged attack on private property: a $10 billion bond program under which the bonds would be available to "preserve and enhance green space, create or restore urban parks and buy or get permanent easements on suburban open spaces and threatened wetlands:" and a $1 billion program to expand federal wilderness and urban parks. In short, both programs would be aimed at removing property from private ownership to government ownership and control.
The programs are heartily and openly endorsed by the Sierra Club and the Wilderness Society. That support is understandable because both organizations have launched continuous attacks on private property ownership. The American Land Rights Association has referred to the Gore-Clinton proposals as "a new entitlement for the Nature Conservancy and other green groups."
Gore’s position is understandable. He has made it clear since publication of his book Earth in the Balance that he pursues a limitation on property rights with a religious fervor. He believes that only by limiting private property rights can a balance between "a belief in the individual and a commitment to the community" be reached which will support "an environmentalism of the spirit." (Earth in the Balance, p. 242).
What is not understandable is the fact that even some Republican members of Congress will apparently support legislation which will allow, outside the normal appropriations process in Congress, the expenditure of up to $1.5 billion of Land and Water Conservation Fund dollars to purchase private property and place it in government hands. For years these same members of Congress have opposed the depletion of private property and the additions to government ownership. Why now, in the face of the expansionist left-wing assault on private property by Gore and Clinton, would these members of Congress turn away from the fundamental understanding that private property ownership is what separates our free, and limited government from socialist concepts.
All these efforts to remove property from private ownership turn on its head the concept of limited government which is embodied in our Constitution. Our founding fathers would have been aghast at the suggestion that the central government should be in the business of buying up private property. From the inception of our national government, our leaders struggled with the best method of conveying the property held by the United States into private ownership hands.
Nothing in our Constitution even implies that the federal government has or should have the power and authority to become a realtor, a land use control agency. Rather, the federal government is limited to only those duties and powers specified in the Constitution. Noted historian Henry Steele Commager has pointed out that the philosophy and principles of government expressed in the Constitution were not new, they had been expressed as elements of freedom throughout history. But, he notes that what makes our Constitution unique is that "The Americans...were the first to set up governments which were, in fact, limited—limited by written constitutions, bills of rights, separation of powers, checks and balances, and, in time, judicial review."
These land acquisitions proposals, by Gore-Clinton and by members of Congress, make a mockery of the concept of "limited" government. They will expand the power of government over private property far beyond the limits set by our Constitution.
The proposals call for federal buy-up of private property. The expansion of land ownership by the federal government will accomplish land control far beyond the boundaries of the property actually purchased. Court decisions have made it very clear that with land ownership by the federal government goes the power of the government to control land use of adjoining lands. In Camfield v. United States, 167 U.S. 518 the Court confirmed the power of the federal government to abate fences on adjacent land, in U.S. v. Lindsey, 595 F.2d 5 (9th Cir. 1979), the Court recognized the power of the federal government to punish persons who built a campfire on non-federal land adjacent to a national recreation area, in U.S. v. Arbo, 691 F.2d 862 (9th Cir. 1982) the Court ruled that a person could be charged with interference with a federal Forest Service officer even when the action took place on non-federal property which was adjacent to federal property, and in Free Enterprise Canoe Renters Association v. Watt, 549 F.Supp. 252 (E.D. Mo. 1982) the Court held that the National Park Service could prohibit the use of state roads for canoe pickups within a federal Scenic Riverway.
The purchase of every piece of property by the federal government, even if that property is then leased to an environmentalist group, carries with it the power to control land use of all land which lies adjacent to the federal property. Every purchase carries with it the power to cut-off access and to cut-off multiple use of the federal lands. The admin-istration of Clinton-Gore-Babbitt-Dombeck has made a constant assault on the rights of access to and across federal lands. These new proposals offer new support to their restrictive policies.
The purchase of every piece of property by the federal government increases the power of the government to regulate that property and all adjacent properties. These proposals call for an unprecedented expansion of federal power to govern the use of property. Even Andrew Jackson, who many believe sought to increase the power of the presidency at the expense of the Congress, is reported to have said "That government is best which governs least." In that statement lies the wisdom of the limitations on government put in place by our founding fathers. The current land-grab proposals endanger the concept of limited government, at the expense of property owners, as never before.
Consider also the impact on private property owners, of the purchases by local government and by environmentalist groups of private property with funds provided through these programs. With every urban park or land set-aside goes the cost of future upkeep and maintenance. That cost will come, eventually, from local tax dollars collected from private property owners. With every such purchase land will be removed from the local tax base. Even a rocket scientist can tell that this equates into a higher tax upon the private land owner, for maintenance of the property removed from private ownership, as well as for other governmental services.
What rural property owners must understand is that their property will be heavily targeted by these programs. When Gore talks of stopping "urban sprawl" by his various land control techniques, he, of necessity, will look to tying up further development of the rural or "suburban" property which lies adjacent to urban areas. When he talks of obtaining government easements on "suburban open spaces and threatened wetlands" he is looking directly at the rural property owners in most of the west where "suburban" is "rural." Keep in mind that with every such government easement obtained will go government regulations as to the land use within that easement and adjacent to it.
The supporters of these proposals will claim that the people in the urban areas want programs to preserve open space and green-belts. They will claim that owners of private property should be entitled to sell their property to the government in order to create urban parks and preserve open spaces. If so, the local government which is most directly linked to the people, should take the responsibility for financing such purchases from local tax dollars. That will require local government officials to make budget presentations which will clearly reveal the true cost to the taxpayers, the true impact on property taxes, and the true extent of land use control which will result. Financing land acquisitions from federal funds which will result in attachment of federal regulations and will result in a hiding of future costs should not be used as a substitute for local accountability. Financing land acquisitions from federal funds outside the normal appropriations process will eliminate budget accountability altogether.
Some of the very Congressmen who are now supporting these land-grab efforts have repeatedly urged "no net loss of private land in America." In that prior effort they have supported the concept that ownership of private property is essential to freedom. If you still believe, as we do, that the ownership of private property stands at the cornerstone of our freedom, you should immediately contact your Congressman and tell him or her that you oppose unappropriated trust funds and all other federal efforts to decrease private property ownership—whether through federal purchase, local government purchase or environmentalist purchase.
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