HR 701, titled The Conservation and
Reinvestment Act.
CARA – The Unraveling of a Free Nation
by Fred Kelly Grant
Overview
For the past two sessions of
Congress, Congressman Don Young and Senator Frank Murkowski have filed
bills calling for the largest amount of money ever attempted to be
allocated for federal and state land acquisition of private property
in America. The bill currently filed is HR 701, titled The
Conservation and Reinvestment Act.
The current bill does much more than just increases
the Land and Water Conservation Fund, the land acquisition funding
mechanism. It increases the total amount of offshore revenue to the
government for CARA from $2.8 billion to $3.1 billion with over $1
billion a year available for acquisition of private property. It
also gives the federal agencies a blank check by placing these funds
off budget, with little to no accountability on how the money is
spent.
Further, it creates several new environmental
programs that will make current environmental laws such as the
Endangered Species Act pale in comparison.
When it became clear that the Senate would not pass
CARA in the last session of Congress, portions of the bill were passed
as riders to end of the year Appropriations bills. “CARA Lite,” as it
became labeled, included a new program for habitat protection of
non-game species, which can include most other species not currently
covered under the ESA.
At
the beginning of 2001, a new and larger version of CARA was
re-introduced, again as HR 701, and the battle for property rights
began for another year. Proponents propose to set aside $45 billion
over the next 15 years, a large portion of which would go directly to
state and federal land acquisition funds. Proponents have also
launched with the bill a campaign to convince the public and their
peers that the bill is property rights friendly. Nothing could be
further from the truth.
This third report on this massive land-grabbing bill attempts to
separate fact from fiction with a close analysis of what the language
of the bill would mean for landowners.
This report is designed to:
·
Dispel the myth of
“willing seller” and show how the writers of the bill crafted the
language so that the judicially accepted definition of “willing
seller” would not apply to anyone adversely impacted by this bill.
·
Show how
condemnation of private property is clearly the intent of the bill
although proponents claim property will only be acquired from “willing
sellers.”
·
Explain how CARA
provides the opportunity for creation of 50 state species protection
programs, which will dwarf the impact of the Endangered Species Act.
·
Illustrate how
adjoining property owners or in holders to the vast new federal and
state land holdings created under this bill will be adversely impacted
through additional regulations and restrictions although proponents
claim otherwise. Other Acts of Congress and court decisions already
make this possible.
·
Dispel the notion
that property owners will have the protections proponents claim
through Section 10 of the bill entitled “Protection of Private
Property Rights.” This section provides no additional protections than
what is already available to landowners under the Constitution of the
United States.
·
Show how not one
word of the bill protects existing private water rights against
encroachment and intrusion under some cooperative management agreement
reached between the state and federal agencies to use water for game
refuges or habitat protection for any species.
·
Explore how CARA
crosses the fine line that separates the legislative constitutional
authority from the executive by giving the executive the ability to
permanently shape laws and package legislation. If CARA passes, it may
well be found to be unconstitutional in a court of law just as was the
Line Item Veto in 1998.
Through close
inspection of the language of CARA, not simply the claims of
proponents, it is clear that projects cannot be successfully funded
without the erosion of private property in America and the
accumulation of federal and state land holdings.
Introduction
“HALF A LEAGUE, HALF A LEAGUE, HALF A LEAGUE ONWARD…”
From the Charge of the Light Brigade, by Alfred, Lord Tennyson
Throughout the year 2000, opponents of the Conservation and
Reinvestment Act (CARA) repeatedly emphasized CARA’s inherent dangers
to private property. Supporters who long for the pork value of the $45
billion spread over 15 years ignored, evaded and downplayed the
dangers.
Opponents directed attention to specific language in the Bill, which
provided for condemnation of private property, uncontrolled discretion
of bureaucrats, and full-scale enlistment of the states into the
assault on private property rights. Supporters openly ignored the
specific language and misrepresented the potential impact of the Bill.
Even during the floor debate in the House of Representatives, when
confronted with specific language providing for condemnation, Don
Young and his minions, without shame, contended that property would
only be bought from “willing sellers.” They assumed that a vast
majority of Americans would not take the time to actually read the
long, complex Bill.
The Bill passed by the House of Representatives hit the proverbial
brick wall when a small, but dedicated, band of Senators stood the
watch for property rights. When it became clear that the Senate would
not pass the Bill as referred by the House, the White House and CARA
supporters forged a compromise, which was enacted as portions of
various appropriations bills. Some opponents pronounced this “lite
CARA,” gaining its name from the reduced funding limits, a victory.
But, most all of those familiar with the process recognized that the
foot of the monster had been wedged in the door, and that the
“heavyweight CARA” would return to the ring.
Now, the House is again faced with HR 701, a CARA bill carrying the
same baggage as the last. Again, supporters make false claims about
the contents of the Bill, and ask the American people to have faith in
them to do the right thing.
Opponents, much like the members of the Light Brigade memorialized by
Alfred Lord Tennyson, once again must enter the fray to set the record
straight. They must feel the same futility that doomed the Brigade.
What can be said and done that was not said and done during the last
session? But they, like Tennyson’s “noble six hundred,” will charge
ahead, without dismay, to do what they see as their duty. They must
remember, and remind Americans, to read the language of HR 701. They
must remember, and remind Americans, to study the language rather than
place faith in the claims of the Bill’s supporters. As John C. Calhoun
of South Carolina reminded the Congress in 1810, “Faith is an article
of religion but not of politics.”
Ray Kreig is an ardent supporter of private property rights who last
year helped persuade the Alaska Republican Party to oppose CARA in the
face of fierce lobbying by Rep. Don Young. In May 2001, Kreig asked a
CARA supporter to respond to the analysis set forth in “Fatal Flaws of
CARA” and “Fatal Flaws II, CARA Exposed.” The supporter offered to
make himself available to “discuss what the House bill will and will
not do.” It might be useful to discuss what the supporter believes
will result from application of the terms of the House bill. But, the
best evidence of what the House bill “will and will not do” lies in
the specific language of the Bill. It is a truism of politics, well
known to the Founders, that if the language of legislation “allows” a
bureaucrat to do something to further his authority he will do it.
So, once again, let’s all read the Bill in its entirety. If the Bill
becomes law, the language---not supporters’ claims---will set the
parameters for the growth of government under CARA’s premise of
sacrificing private property. The specific language of the Bill poses
a clear and present danger.
I.
Dispelling, Hopefully Once and for All, the "Willing Seller" Myth,
CARA Provides Billions for Condemnation of Property by Both Federal
and State
In
the words of Alice during her Adventures in Wonderland, it gets
“curiouser and curiouser” why CARA supporters continue to claim that
the Bill authorizes property acquisitions only from “willing sellers.”
Why do they refuse to acknowledge that the specific language of the
Bill provides for condemnation of land and water when the owner does
not agree to sell? The only logical rationale is that they know that
the American people do not favor adverse condemnation of land by the
government. By continuing their false “willing seller” claim, they
hope to escape the people’s rejection of this massive program of
condemnation.
CARA supporters obviously do not expect the American people, or in
fact some members of Congress, to read the Bill. Relying on the
technique of the advertising world, they endlessly reiterate the
“willing seller” claim, and the “main stream media” accepts the claim.
On July 27, 2001 an Idaho Statesman (Boise, Idaho) editorial chastised
Representative Mike Simpson (R-Id.) for opposing CARA, and stated:
“Under the legislation, lands…can be purchased only from willing
sellers. Conservation easements can be obtained only from willing
landowners.
But Section 205 of HR 701 provides now, as it always has:
“(2) WILLING SELLER REQUIREMENT.---The Federal portion [of funds] may
not be used to acquire any property unless---
(A) the owner of the property concurs in the acquisition; or
(B) acquisition of that property is specifically approved by an
Act of Congress.”
(Section 205, page
28 of HR 701, lines 18-24; actual text attached as
Attachment 1)
Let’s assume, for the sake of argument, for the next few paragraphs
that the “concurs” language in (2)(A) actually describes a “willing
seller.” It does not, but let’s assume for now that it does. The
language of (2)(B) still provides for condemnation when the land or
water owner does not “concur” with the sale. The language establishes
an “either or” format: either the seller “concurs” or the government
condemns the property under authority from Congress. The word “or”
cannot be defined as “and,” except perhaps by a Chief Executive
skilled at weaving fact from fiction.
So, it simply is not true that the Bill allows acquisitions “only from
willing sellers.” In fact, section 205 further provides that the
Secretaries of Interior and Agriculture will transmit to Congress,
each fiscal year:
“a
list of the acquisitions of interests in lands and water proposed to
be made with the Federal portion [of funds] for the fiscal year.”
The list is required to include the following:
“(B) In preparing each list [of acquisitions] the Secretary shall—
. . .
(iv) identify those properties that are proposed to be acquired from
willing sellers and specify any for which adverse condemnation
is requested;”
(Section 205, page
30 of HR 701, lines 4-7, text attached as
Attachment 2)
Why require transmission of a list requesting “adverse condemnation”
actions if acquisitions are limited to “willing seller” scenarios?
Obviously, the language does not limit governmental land grabs. The
language contemplates and authorizes condemnation of land and water.
That fact is further corroborated by the language contained in Section
10, the so-called “Protection of Private Property Rights” section that
provides:
“(a) SAVINGS CLAUSE.---Nothing in the Act shall authorize that private
property be taken for public use, without just compensation as
provided by the Fifth and Fourteenth amendments to the United States
Constitution.”
This is the standard and traditional language of only the involuntary
type of sales transaction: a “taking,” a “condemnation,” an “adverse
condemnation” of private property. The combination of this requirement
that compensation be paid for condemnation, with the language of
Section 205, makes it clear beyond the shadow of a doubt that CARA
authorizes and focuses on condemnation of land and water. As an aside
of interest, isn’t it commendable that the authors of HR 701 included
language stating that the Act would follow the mandate of the United
States Constitution?
The language of the Bill should put to rest the claim that land and
water acquisitions will be “only from willing sellers.” But, the myth
goes on. The fact that it goes on should worry all of us---even beyond
the limits of private property concerns. Americans, busy with their
own life problems, often rely upon their favorite “special interest”
organizations for information about proposed legislation. Any time
hundreds of such organizations can be conned into urging the American
people to accept legislation on a premise as false as the “willing
seller” claim, our rights are in clear and present danger.
The CARA focus on governmental grabs of land and water is not confined
to Sections 205 and 10. The Bill encourages states to acquire
property, and supplements their financial ability to do so.
Section 206 provides for funding from the Land and Water Conservation
Fund only to those states, which establish a “dedicated State
land acquisition fund that is funded through the State’s budget
process.” So, the federal funds will be used to supplement
state funds allocated to buy up private land and water rights. Since
Section 205 does not require the states to even consider whether the
seller “concurs” with the sale, states are free to condemn property at
will with their budget enhanced by CARA.
States are also encouraged to buy up private land and water by
provisions of Title IX of HR 5548, which was passed by Congress during
its last session and enacted as Public Law 106-553. This Title was
enacted as part of the “lite CARA” compromise near the end of the
session.
So, one cannot detect the full impact of CARA on private property by
simply reviewing the current HR 701. Rather, one must follow the
trail, which begins in the language contained in section 301 of HR
701. It states that the purpose of CARA’s Title III, “Wildlife
Conservation and Restoration” is to “ensure adequate funding of the
Wildlife Conservation and Restoration Planning program established
under the amendments to the Pittman-Robertson Wildlife Restoration
Act…enacted by H.R. 5548 as introduced in the 106th Congress and
enacted, by reference, by Public Law 106-553.”
The patient researcher, following this trail from Section 301 of HR
701, will discover a Bill setting the “appropriations for the
Department of Commerce, Justice, and State, the Judiciary, and related
agencies for the fiscal year ending September 30, 2001, and for other
purposes.” Not exactly where one might reasonably expect to find CARA
programs.
Further patience leads one to page 164 of a 247-page bill (as printed
from
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&docid=
f:h5548ih.txt.pdf
) and to a Title called “Wildlife, Ocean and Coastal Conservation.”
There we find Section 902, which states that the Title is intended to
“encourage” states to participate with the federal government and with
non-government wildlife organizations to implement such programs as
the following:
a.
“periodic or total protection of a species or population”
b. “reintroduce individuals of a depleted indigenous species into
previously occupied range”
c. “improvement of areas of land or water adaptable as feeding,
resting or breeding places for wildlife, including acquisition of such
areas or estates or interests therein.”
(Section 902 of HR
5548 containing appropriations for “Department of Commerce, Justice,
and State, the Judiciary, and related agencies for the fiscal year
ending September 30, 2001, and for other purposes,” text of section is
attached as
Attachment 3.)
Section 902 specifically authorizes states to use the federal funds
for
“acquisition…of habitat” for species protection and conservation
programs. Section 205 of the current CARA bill, combined with Section
902 of HR 5548, facilitates federal and state buy-outs of land and
water---by condemnation when desired. Congress has already enacted the
program for state acquisitions (by passing HR 5548) and now is simply
funding that program with Section 303 of CARA.
In
spite of protests to the contrary, it is patently obvious that CARA
authorizes and focuses on condemnation of private property. With that
fact behind us, now let’s examine the question of whether the language
of Section 205 purporting to describe a “willing seller” really does
describe such seller.
As
already pointed out, under the heading of “Willing Seller
Requirement,” Section 205 refers to transactions in which the property
owner “concurs in the acquisition.” Is an owner who merely
“concurs” with a sale a “willing seller?” The answer provided by
courts throughout the land is “no.”
The term “willing seller” is a standard term used in matters relating
to transfer of title to property, and it is governed by a standard of
being free from pressure of any type. The term has not been judicially
interpreted to mean simply a concurrence by the seller to transfer
title.
For example, in Estate of Sears v. Sears, 178 N.E. 2d 240 (Ohio
1961), the Court described a “willing seller,” a “willing buyer” and
“market value” as follows:
“Market value traditionally has been defined in Ohio as ‘the fair and
reasonable cash price which could be obtained in the open market, not
at forced sale or under peculiar circumstances, but a voluntary
sale as between persons who are not under any compulsion or
pressure of circumstances and who are free to act; or in other
words, as between one who wants to sell and is not compelled to
do so and one who wants to purchase and is not obligated to do so.’”
178 N.E. 2d at 243
The key element in the standard by which one determines whether a
seller is “willing” is not that the seller agreed to sell, or
“concurred” in the sale, but that he “wanted” to sell, and was under
no “pressure of circumstances” which influenced his decision. The Ohio
Court stated the test in terms, which are utilized generally
throughout jurisprudence. In Estate of Harry Morrison v. Idaho
State Tax Commission, 98 Idaho 766, 572 P.2d 869 (1977), the Court
stated:
“Ordinarily market value is defined as the price at which a
hypothetical seller, desiring to sell the property but being
under no compulsion to do so, and a hypothetical buyer, desiring
to buy the property but being under no compulsion to do so, would
agree to exchange the property. [citations omitted] The essence of
this definition lies in the symmetry between the selling and buying
party – it is assumed that there will be both a seller willing to sell
and a buyer willing to buy the property in question, neither of whom
is under any compulsion to enter into the transaction.”
572 P.2d at 873.
Members of Congress are aware of this accepted definition of “willing
seller.” Those who drafted CARA used the term in the title for the
subsection dealing with acquisitions: “Willing Seller Requirement.”
Why, then, did they not use the term “willing seller” in the body of
the subsection? Why wasn’t the Bill drafted to read as follows:
“(2) WILLING SELLER REQUIREMENT.---The Federal portion may not be used
to acquire any property unless---
(a) the owner of the property is a willing seller…”
More importantly, if the supporters want to continue to make their
“willing seller” claim, why don’t they amend the Bill now? Why have
they decided to characterize their seller in terms of merely
concurring with a sale, instead of using the standard terminology:
“desires to sell and is under no compulsion to do so,” or “wants to
sell and is under no compulsion or pressure of circumstances.”
Use of the simple phrase “is a willing seller” would bring into play
the traditional definition, with which all courts are familiar, as
a standard by which government acquisitions could be measured.
When such a simple method for describing a “willing seller” is
available, but is not used, natural suspicions arise that the
government purchasers will not be looking for the true “willing
seller.” Rather, they will be looking to owners who are distressed by
restrictive government regulations, and who are facing financial
crisis because of restrictive government regulations.
Species patrols funded by federal and state agencies can initiate
lawsuits, which squeeze owners of private property to the point of
breaking. Then government and non-governmental conservation groups can
swoop down on property owners like those in the Klamath Basin who are
facing ruin as a result of litigation filed under the Endangered
Species Act. It is reported that offers of $2500 per acre are being
made for purchase of the farms where owners are facing bankruptcy.
The offered price would not begin to provide for the future of the
farmers and their families. But, in order to escape certain financial
ruin, some of them may “concur” or “agree” to sale of their property.
Do they “want to sell?” Are they free of “any compulsion or pressure
of circumstances?” No. Are they facing a “forced” sale, a sale under
“peculiar circumstances?” Yes. So, will they be “willing sellers?”
Under the law as generally stated throughout the United States, the
answer is “no, they will not be willing sellers.” But the government
purchasers can claim as to each purchase that they have complied with
the law and acquired property only from an owner who “concurs” with
the transaction.
A
Klamath farmer may be “forced” to sell to the highest bidder, “no
matter how low, inadequate, or unfair he might feel the price to be.”
His financial plight will “attract bargain seekers and…the seller
[will have] lost all control over the sales price.” Such
circumstances have been held to take a sale out of the “willing
seller” category. See State ex rel. Rounds v. Board of Review of the
Town of Union, 143 Wis. 2d 891, 421 N.W. 2d 117 (Wis. App. 1988) But,
under Section 205 of CARA, he would be considered “willing” if he
accepted the offered price.
The courts have long recognized the spectra of forced farm, ranch and
timberlands sales under circumstances not of the landowner’s making.
In Sierra Club v. City of Hayward and Soda, 28 Cal. 3d 840, (Cal.
1981), the California Supreme Court stated:
“As the urban fringe approaches, the farmer’s land becomes valuable
for residential development. His taxes are therefore increased,
although his income is likely to shrink as more costly practices must
be undertaken both to avoid interfering with his new neighbors and to
protect his crops, livestock, and equipment from their intrusion.
[citations omitted] Often the farmer is forced to sell his land to
subdivision developers, sometimes long before development is
appropriate.”
28
Cal.3d at 850
The land and water owner is caught in the same trap when the pressure
emanates not from developers but from the government and
non-governmental conservation groups applying the “species squeeze.”
In Klamath Basin, the pressure results from an Endangered Species
lawsuit in which a federal judge ordered irrigation water turned off.
Representative Simpson (R-Id.) responded to the Idaho Statesman
editorial in a guest opinion column printed on July 31, 2001. He
pointed out that:
“…farmers or ranchers who are forced to sell their land under the
duress of environmental lawsuits and regulations resulting in severe
economic hardships are not truly a ‘willing seller.’ . . . Last month,
I attended a congressional field hearing in Klamath Falls [Oregon],
where I heard firsthand from farmers faced with the possibility of
becoming a ‘willing seller.’ Lawsuits by environmental groups over the
endangered ‘sucker’ fish have cut off water to 1500 farms in the
Klamath Basin. These farmers want to continue farming as they have
done for generations, but they’re being squeezed into a box where they
have no alternative other than to become a ‘willing seller’ in order
to protect their families from financial ruin.”
Ironically, even though Rep. Simpson opposes CARA, and for good
reasons, even he assumed that the Idaho Statesman editorial
board is “correct that the current version of CARA contains private
property safeguards requiring purchases only from ‘willing sellers.’”
This statement from a staunch foe of CARA caused the author to
retrieve the most current version of HR 701 to be sure that the
language of condemnation has not been eliminated. It has not! Section
205 still authorizes condemnation and requires the Secretaries to
submit a list of proposed adverse condemnations to Congress each year.
The United States Supreme Court has pointed out, in U.S. v. Clarke,
445 U.S. 253, the hardship which condemnation and regulatory taking
actions thrust on property owners:
“When the government takes property without initiating condemnation
proceedings, it ‘shifts to the landowner the burden to discover the
encroachment and to take affirmative action to recover just
compensation.’
Even when the government does not dispute its seizure of the property
or its obligation to pay for it, the mere ‘shifting of the initiative
from the condemning authority to the condemnee can place the landowner
‘at a significant disadvantage.’”
445 U.S. at 255, 257.
CARA supporters do not want the American people to realize that
billions of dollars will be made available for condemnation of private
property. They do not want the American people to understand that
these billions of dollars can be used to initiate condemnation
proceedings, which are emotionally traumatic and financially costly to
the private property owners. They do not want the American people to
understand that these billions of dollars can fund regulatory takings,
which force private property owners to initiate costly legal
proceedings to obtain compensation for their lost property.
So, they play the “willing seller” card. And, they play it…. and they
play it. They persuade the special interest groups. They hope that the
public will not read the Bill and see the light.
SPECIAL NOTE:
During House Committee on Resources open markup session on July 25,
2001, several amendments were offered which would limit the
condemnation authority as currently stated in the Bill. Representative
Thornberry introduced an amendment, which would restrict use of funds
to acquire land through condemnation. The amendment failed by a vote
of 21 to 16. Other private property protections offered by
Representatives Pombo, Otter, Walden, and Cubin were also defeated.
The supporters champion their “willing seller” claim, but reject an
attempt to limit condemnations. The message is clear!!
II. CARA Takes the Adverse Impact of the
Endangered Species Act to a New, Heightened Level
This Bill provides for state programs of species protection, which
will extend the adverse impact of the Endangered Species Act well
beyond its current wide parameters. Private property owners have been
hard hit by application of the ESA directly to their property, and
indirectly through restrictions placed on land use of adjacent
property. Now, batten down the hatches!
The Wildlife Conservation and Restoration Program to be funded by CARA
will provide the funds to state fish and game commissions to do the
following:
1.
Reintroduce species such as wolves and grizzly bears;
2. Provide “total protection” of “any species or population”
regardless of whether the species is a sensitive, threatened or
endangered species under the ESA, and regardless of whether it is a
game species; 3. Buy up private property to create habitat for any
species;
4. Cooperate with and contract with federal agencies and
non-governmental conservation groups to extend state programs;
5. Develop a “comprehensive plan” which must meet guidelines set by,
and be approved by, the Secretary of Interior.
The reader will not find all these elements of state “enlargement” in
HR 701. They were tucked away into Section 902 of HR 5548 introduced
in, and passed by, the 106th Congress. As already explained, these
provisions were passed as part of the “lite CARA” compromise and
included in the Bill which appropriated funds for the Departments of
Commerce, Justice, State, Judiciary and “related agencies.”
This technique of stashing away vital portions of a program in a
seemingly unrelated Bill is not new. Unfortunately, it is quite
common. Many recall how the Quincy Library Bill relating to natural
resource use in central California was enacted as an amendment to an
Indian land lease authorization relating to lands in the Dakotas. How
does the ordinary, hard working citizen keep up with, and review, the
actual contents of a program when the “main Bill” may not contain the
entire program? Of course, he or she cannot. And, that may be the
point of it all!
At
any rate, we know where the Wildlife Conservation and Restoration
Program reside: in Title IX of HR 5548, which is now Public Law
106-553. Without specifying the details of the program, Title III of
CARA simply funds the Program.
Section 902 of HR 5548 provides in subparagraph (a)(1) that the
purpose of the Act is to fund state programs to protect:
“a
diverse array of wildlife and associated habitats, including species
that are not hunted or fished, to fulfill unmet needs of wildlife
within the States in recognition of the primary role of the States
to conserve all wildlife.”
Note the lack of limitation; the funding applies to unlimited species,
“all wildlife.”
Section 902 (a)(2) states that the Act is designed to “assure sound
conservation policies through the development, revision, and
implementation of a comprehensive wildlife conservation and
restoration plan.” Section 902 (2) defines “conservation” policies to
be funded as follows:
“…the use of methods and procedures necessary or desirable to
sustain healthy populations of wildlife, including all activities
associated with scientific resources management such as research,
census, monitoring of populations, acquisition, improvement and
management of habitat, live trapping and transplantation, wildlife
damage management, and periodic or total protection of a
species or population, as well as the taking of individuals within
wildlife stock or population if permitted by applicable State and
Federal law;”
Property owners---land and water---can envision the species patrols
which will be activated in order to implement such programs, and in
order to spread the impact of such programs to every inch of private
property possible. It will not be difficult at all to devise a project
to include “transplantation” of a species so that it moves into
private property, then the project will provide the requirement of
monitoring and census-taking on that private property, followed by the
declaration of “protection” of the species, and then the squeeze of
the “willing seller” who is left with property he or she cannot use.
Ah, but remember, the state need not even be bothered with whether the
owner “concurs” to a sale---the state can move right to acquisition
either by direct condemnation or inversely by regulatory restrictions.
When supporters tell you that such invasive tactics are not within the
purpose of CARA, remind them of the Klamath Basin, the Bruneau Hot
Springs Snail (in Idaho), the Spotted Owl, and a whole host of other
species activities undertaken for the sole purpose of adversely
impacting private property rights. Remind them of the project planned
for the Darby in Ohio.
Section 902 (a)(3) states that one of the Bill’s purposes is to
“encourage state fish and wildlife agencies to participate with the
federal government, other state agencies, wildlife conservation
organizations and outdoor recreation and conservation interests,
through cooperative planning and implementation of this title.” Pay
special attention to the fact that the Bill does not “encourage”
participation by and cooperation with private land and water owners or
local and county governments which will be hit hardest by the plans
developed and projects implemented. Section 902 does provide for
“coordination to the extent feasible” with “local agencies” in the
development of a state comprehensive plan, but the feasibility
determination is left to the discretion of the state agency. And, the
“coordination” is required only with those local agencies “that
manage significant areas of land or water within the state, or
administer programs that significantly affect the conservation of
species…” Those limitations eliminate most county governments.
Again, there is no requirement of “coordination” with private
property owners or organizations of such owners.
So, using the “encouragement” of dollars supplied by taxpayers,
“wildlife conservation organizations” that have furiously fought the
interests and rights of property owners will be involved in the
planning for, and implementation of, all the programs listed in
Section 902. This is certainly a most frightening thought for property
owners, and for the county governments, which have to furnish services
to those owners.
It
should also be a frightening thought for all hunting and fishing
enthusiasts whose national organizations have jumped on board the
“CARA express.” They may look longingly at the millions of dollars,
which will be made available through this pork barrel. But, they
should be thinking about the restrictions on all outdoor activities
which the Audubon Society or the National Wildlife Association can
bring about through their “cooperative planning and implementation”
role, shored up by federal dollars. They should be thinking about how
conservation organizations have fought open access, and about the
shut-down of access which can be accomplished through “total
protection of a species or population.” They should be mindful of the
access, which is available throughout the nation today because of the
availability of private property and the cooperation of owners. When
the vise is tightened under this Title, and unwilling sellers decide
to “concur” with a sale, private property---private access---will
disappear.
SPECIAL NOTE:
At the House Committee on Resources open markup session on July 25,
2001, Representative Otter presented an amendment, which would
preserve rights-of-way by restricting the termination of rights-of-way
through acquired lands. The amendment was defeated by a vote of 19-15.
The “access message” to outdoorsmen should be clear!!
Section 902 (4) defines “wildlife” as “any species of wild,
free-ranging fauna including fish, and also fauna in captive breeding
programs, the object of which is to reintroduce individuals of a
depleted indigenous species into previously occupied range.” The
Bill also provides that the state, which receives funds for such
projects, can contract for management of the projects with the federal
government or with wildlife conservation organizations. Not much more
needs be said about the impact of such an organization contracting to
manage, or even being involved in the implementation of, a project to
“reintroduce” species into “previously occupied range.”
Section 902 contains a subsection entitled “Wildlife Conservation and
Restoration Programs.” That subsection provides that for a state to
receive funds under this program, it must “submit” to the Secretary of
Interior “a comprehensive plan” that includes a five- year strategy
for development of “wildlife conservation projects” which give
“appropriate consideration to all wildlife.” The comprehensive
plan is subject to the approval of the Secretary, and when that
approval is given the vault doors are thrown open. For the past 60
years we have all watched the attachment of federal “strings” to funds
supplied by the federal government. There is no grant, no contract, no
distribution of federal funds not encumbered by “strings” tied to a
goal of federal management.
SPECIAL NOTE:
At the House Committee on Resources open markup session held on July
25, 2001, Representative Pombo offered an amendment, which sought to
grant 100 percent of the Land and Water Conservation Fund money to the
States without federal intervention. The amendment was defeated 24-16.
Supporters do not want to diminish the potential for federal
intervention, and expansion of federal power and authority. That
message is clear!!
The hold of the federal government on the states which participate
(and all will most likely participate in order to get “their share”)
is provided for throughout CARA and its auxiliary (Title IX of
Commerce et al.). Section 4 of HR 701 requires that each state
receiving money from the CARA fund will annually report, “in
accordance with regulations prescribed by the Secretary” of
Interior. The scope of those “regulations” is left to the Secretary’s
discretion. Throughout the Bill and its auxiliary appears the
requirement that states can obtain funds under the various Titles only
after the Secretary has approved a plan. Can there be any doubt that
the “regulations” issued for the development of those plans will
further the federal agenda? If that is not the case, it will be a
monumental first.
The enticement for state participation in the enlargement of
governmental authority and encroachment on property rights is of
course the millions of dollars available to each state over the next
15 years. The federal impact on state activities is heightened by the
Bill’s requirement that federal funding will be a supplement to the
state’s own appropriations, not a substitution of funds. Section 8 of
HR 701 provides that:
“No state or local government shall receive funding under this Act
with respect to a program unless the Secretary is satisfied that such
a grant will be so used to supplement and, to the extent practicable,
increase the level of State, local, or other non-Federal funds
available for such program.”
CARA provides the opportunity for creation of 50 state species
protection programs, which will dwarf the impact of the ESA. It
provides the opportunity for development of state programs through
contracts with the federal agencies and with conservation
organizations, which fall outside the oversight of state legislatures.
It provides a virtually unbridled opportunity for opponents of private
property rights to arm themselves for the final assault, particularly
on critically vulnerable agricultural property and in holdings.
III. Vast Increases in Government-Owned Property, or Property
Purchased for Restrictive Conservation Non-Use, Will Heavily Impact
Inholders, Adjoining Property Owners and County Communities.
The language of the Bill makes it apparent that a central focus is
acquisition of private property by federal and state government, and
by non-government conservation organizations. The property acquired
with CARA funding will be removed from its natural, traditional use,
particularly when the prior use is agricultural in nature.
Motivations for acquiring vast expanses of property in such manner
will vary:
--urban officials will seek parks, ball fields and open spaces,
--opponents of livestock grazing, mining, logging and recreation uses
will seek to retire land and water from such uses and close access,
--urban officials will seek sources of water,
--conservation extremists will seek to remove human habitation
and uses of the land in order to set aside wildlife reserves and
wilderness, closing access.
No
matter the motivation, the victims of the assault on private property
ownership will be the property owners squeezed into sacrifice sales,
inholders and owners of property adjoining that which is acquired by
the government or conservation group, and the county communities which
depend upon a stable, but limited, tax base and upon the vitality of
the property owners in those communities.
The California Supreme Court described in Sierra Club v. City of
Hayward, supra, the experience of any farmer who finds urbanization
creeping in on his or her land, and then surrounding it. Land uses are
dictated by such surrounding uses.
If
the encroaching use is urbanization, the residents who move in will
object to the sounds and smells of natural resource industries.
Federal and state regulations will restrict traditional methods of
fighting weeds and natural enemies of agricultural commodities, such
as spraying for pests, because of the nearby residences.
If
the encroaching use is restrictive conservation of habitat for some
“protected” species, the land use of inholdings and adjoining land
will be restricted in order to avoid harm to the protected area.
SPECIAL NOTE:
Members of Congress see the adverse impact on adjoining property to be
a real, not speculative, problem. On July 25, 2001, Representative
Pombo (R-Ca) offered an amendment entitled Protection of Rights in
Non-Federal Property From Federal Acquisition of Nearby Lands,
designed to assert the property rights of inholders and owners of
lands adjoining federal lands. The amendment failed by a vote of
22-17.
Congressman Pombo is squarely on target in trying to protect inholders
and adjoining property owners. The Bill does not provide such
protection. Rural America has witnessed the proliferation of federal
and state regulations and restrictions, which accompany government
land purchases and habitat designation. Supporters of CARA point to
the provisions of Section 10(b) as establishing adequate protection
against enlargement of federal regulations:
“(b) REGULATION.---Federal agencies, using funds appropriated by this
Act, may not apply any regulations on any lands or water until the
lands or water, or an interest therein, is acquired, unless authorized
to do so by another Act of Congress.”
This language is no more than a wisp of smoke to cloud the issue. It
provides no protection. Virtually every Act of Congress providing for
management of federal lands by a federal agency contains language,
which authorizes the agency to take actions necessary to protect the
federal lands. Using that process, the federal agencies can apply
their protective regulations because they are “authorized to do so” by
the particular management Act.
Courts have advised us that under such protective provisions of law,
the federal government has the power to control land use on private
land, which adjoins federal lands. See Camfield v. United States,
167 U.S. 518, where the United States Supreme Court confirmed the
government’s power to abate fences on adjoining private land;
United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979), where the
Ninth Circuit Court of Appeals confirmed the power of the government
to cite and punish persons who built a campfire on non-federal land
adjacent to a national recreation area; United States v. Arbo,
691 F.2d 862 (9th Cir. 1982) where the same Ninth Circuit court ruled
that the government could criminally charge a person with interference
with a federal Forest Service Officer even when the interference
occurred on non-federal land adjacent to federal land; and Free
Enterprise Canoe Renter Association v. Watt, 549 F. Supp. 252 (E.D.
Mo. 1982) where the federal district court held that the National Park
Service could prohibit the use of state roads for canoe pick-ups
within a federal Scenic Riverway.
Moreover, federal acts such as the Clean Water Act and the
Environmental Protection Act, and the administrative regulations
issued thereunder, are being used to restrict uses on private
property. Those Acts, as well as the particular management act
governing the management agency, will be used to restrict inholdings
and adjoining lands.
In
addition, the provisions of CARA present the federal agencies with the
opportunity to expand their regulatory restrictions without acquiring
land, thus evading the limited effect of Section 10(b). CARA will
finance establishment of state species programs (including purchase of
habitat) to extend species protection beyond the limits of the
Endangered Species Act. States are encouraged by the Bill to enter
into cooperative management agreements with the federal agencies to
implement such species protection plans. The federal agencies can (and
if a bureaucrat can, he or she will) seize the opportunity to extend
ESA regulations to private property through the cooperative management
plan with the State. Thus, Section 10(b) is evaded.
Inholders and adjoining property owners who have easements, rights of
ways or other access agreements will lose their access if it is not
protected by the sales transaction documents. Purchasers who want to
restrict land uses will not be inclined to continue access
arrangements if the inholders and adjoining property owners are
engaged in land use inconsistent with the purchasers’ aims and goals.
An inholder who logs his or her own timber property may be denied
access to remove cut timber; an inholder who grazes livestock may be
denied access for movement of the stock.
SPECIAL NOTE:
Members of
Congress recognize this as a real, not speculative, problem.
Representative Otter (R-Id) offered an amendment on July 25, 2001,
which would protect rights of ways by restricting termination of
rights of way through lands acquired with use of CARA funds. The
amendment failed, but 15 members voted in favor of it.
The Sweethome decision exposed private property to impact from
the Endangered Species Act. As the species protection attack on
property expands through 50 state programs funded by CARA, the impact
on private property will mushroom. As the state or federal agencies
buy property for species habitat and protection, adjoining property
will be immediately subjected to restrictions.
As
land use restrictions, legal or practical, result from encroachment of
conservation uses, the value of inholdings and adjoining properties
will decrease dramatically. Such decreases will reduce the tax base
for county government, which furnishes the most critical of government
services to local constituents. Each acquisition of private property
by the government will also adversely impact that tax base.
It
is no answer to county governments for the supporters of CARA to
flaunt the PILT (payment in lieu of tax) provisions of the Bill.
County officials, and the people of county communities, know that PILT
payments do not make up for the economic and social loss, which occurs
when a property owner sells out. As Rep. Simpson (R-Id.) said in his
opinion column in the Idaho Statesman:
“Whenever the federal government buys a farm or ranch, it no longer
provides a piece of the economic engine that is the lifeblood of our
rural communities. While the landowners may be compensated, the
community’s residents lose jobs, and the local hardware store, feed
store, implement dealers and other merchants lose business and may be
forced to close their shops. In addition, the county loses tax
revenue, and schools and roads are affected to an extent never fully
compensated by federal PILT payments.”
The Chairman of the Board of County Commissioners for Owyhee County,
Idaho, Hal Tolmie, agrees in a Declaration filed in an administrative
appeal from a grazing decision, which threatens the continued
livelihood of a ranch family:
“The University of Idaho [has conducted a study of social cohesiveness
in the ranching communities of Owyhee County which has] found that the
ranchers in the Pleasant Valley and Jordan Valley areas of Owyhee
County provide a critical social cohesion for the entire community. I
know the ranchers in the areas. They provide critical community
services such as service on school boards, volunteer fire fighters,
employees of the school district, volunteer emergency medical
technicians, and volunteer youth coaches….Owyhee County depends upon
volunteer services such as these in order to provide critical services
which cannot be funded from the ad valorem tax which is raised from
the small tax base of the county.”
(Declaration filed in Appeal of Re Gusman Allotment, IBLA 2001-271,
2001-272)
Owyhee County is one of the many rural western counties in which the
federal government is already the main landowner. Owyhee County is a
large county, but only 17% of the land is privately owned and on the
tax base. The federal government owns 76% of the land in the County,
and the state of Idaho owns 6.7% of the land. Owyhee County’s
Commissioners oppose CARA because of the severe impact which the
County would experience if CARA funds are funneled into buy-outs of
ranchers who have had enough of BLM’s efforts to restrict grazing to
the point of virtual elimination.
All rural counties share the prospects of huge CARA buy-outs faced by
Owyhee County. The particular ranch industry problems experienced in
that County take the form of wetlands problems, game reserves or
scenic throughways in New York, Ohio and West Virginia. Each time land
use is restricted, the limited tax bases of the rural counties are
impacted.
A
shameful example is seen in Custer County, Idaho. Custer County lies
within the Sawtooth National Recreation Area in rural, central Idaho.
The enabling statute, which created the National Recreation Area,
stated Congressional intent that no more than 5% of the private land
in the Area could be purchased in fee simple by the federal agency. In
spite of that mandate, the Forest Service has purchased, in fee
simple, 17% of the private land in the area and is still buying. The
Service has more than tripled the amount of acquisitions of private
property authorized by Congress.
Congress appropriated the funds, and expected the agency to follow
their instructions. That did not happen. The funds were spent, but the
limitations were ignored. Why should we expect any different result
under CARA? Except that the impact will be multiplied by billions of
dollars spent over a 15-year period. The agencies know that
Congressional oversight is so delayed that their acquisitions will be
complete before anything can be done about it. Once the purchases are
made, Congressional oversight is worthless. The process established by
Section 205 for Congress to review a list of proposed acquisitions
will not solve the problem. That list will be reviewed during
appropriations time, and will be given about as much attention as were
the large number of treaties lumped together for consideration and
ratified by the Senate by voice vote at the end of the last session. A
member of the Senate leadership did not know that the desertification
treaty so critical to the western states was among those treaties when
he voted for them.
But back to Custer County. The removal of private property from the
tax base of this slightly populated county endangers continuation of
critical county services. In addition, the purchase of scenic
easements by the government further depletes the county’s revenue. The
tax potential for all private property covered by these easements is
frozen at a much lower level than the potential valuation, and
corresponding tax rate, would be for developed land. Revenues are
reduced for the county, the school district and all other local taxing
and service districts.
The county assessor and a former assessor provide an example of the
adverse impact: The owner of an 11.5-acre parcel, an avowed opponent
of livestock grazing who purports to be a dedicated conservationist
interested in a sound and beautiful environment, sold a scenic
easement to the Forest Service for $306,000.00. He paid no tax to the
county or school district from the sale price. The terms of the
easement prevent any additional development of the property, even
though three additional residential sites could have been developed
without in any way interfering with the scenic aspects of the National
Recreation Area. The former assessor estimates that the three
development lots and buildings would have raised the assessed value
from the current $230,000 to nearly $2 million. From the property tax
of approximately $13,000 that would have been levied on that
valuation, the school district alone would have received $6,428 in
revenue per year. With the easement placed on his property and no
development, the owner pays only $2,351 in total property tax, with
only a portion of that going to the school district. (It is
interesting to note that the owner, the avowed conservationist, could
have voluntarily refrained from developing his property, refused to
take the $306,000.00 for something that he believed would benefit the
environment, and paid his fair share of the local tax. Expect this
scenario to be repeatedly played out as CARA is implemented.)
The particular problems facing the western rural counties, i.e., the
large landholdings by the federal government, have been specifically
advanced by CARA opponents. Senator Conrad Burns of Montana opposed
CARA in the last session of Congress, stating that “Under the surface
of everything hidden on the dark side of government, is that
government ownership of land has not been all that successful.”
Section 211 of CARA makes special provision for Montana, including a
requirement that property acquisitions with federal funds be “de
minimis.” No such concessions have been made to the other western
states, which are plagued with the federal government as majority
landowner.
SPECIAL NOTE:
At the House
Committee on Resources open markup session on July 25, 2001,
Representative Walden (R-Or) offered an amendment, which would require
approval by a State of federal acquisition of land in a State where 50
percent or more of the lands are already owned by the federal
government. The amendment was not agreed to, with the vote 15 for and
15 against. The message is clear that it will be very difficult to get
any relief from the Congress for the economically strapped rural
counties in the west.
Representative Barbara Cubin (R-Wy) offered an amendment, which would
limit acquisitions of property by requiring no net loss of private
land. The amendment was rejected by voice vote. Again, the message is
clear that western rural counties can expect no relief from CARA’s
debilitating provisions.
IV. Make No Mistake, CARA Does Not Protect Property Rights.
Supporters of CARA tout the presence of protection of private property
rights. Congressional staff has advised Ray Kreig that the choice is
between funding of land acquisitions through normal appropriations
channels or by way of CARA. The suggestion is made that at least with
CARA there is property protection. Not so.
Section 10 is boldly entitled “Protection of Private Property Rights.
"The first paragraph is called the “Savings Clause,” and it states
that “Nothing in the Act shall authorize that private property be
taken for public use, without just compensation as provided by the
Fifth and Fourteenth amendments to the United States Constitution.”
So, all the clause does is say, in effect, “This Act does not replace
the language of the Fifth and Fourteenth Amendments to the United
States Constitution.” Of course it does not, and it would be invalid
if it did. It provides no protection other than what is already
provided by the Constitution, protection that exists with regard to
any other act of Congress: When land is condemned, it must be paid
for.
But, to say that the property owner will be justly compensated when
his or her property is taken against his or her will is not the type
of protection being sought by the person who wants to hold on to, and
use, private property. We have seen that the United States Supreme
Court has recognized in Clark that condemnation thrusts undue
trauma and expense upon the landowner. Section 10 does not relieve
that hardship.
The second paragraph provides that federal agencies may not apply
regulations on “any lands or water until the lands or water, or an
interest therein, is acquired, unless authorized to do so by another
Act of Congress.” The supporters would have you believe that this
section protects inholders and owners of property adjoining federal
acquisitions from the spread of land use restrictions to their
property. We have already inspected this claim, and found that the
paragraph is part of the “smoke and mirrors” CARA game. The last
clause is the deceiver: other acts of Congress already make it
possible to spread regulations and their restrictions.
Next on the “protection buffet” is Section 205 and its purported limit
of acquisitions to “willing sellers.” The study of the language set
forth in Part I should make it apparent that the language does not
limit the inevitable forced sales and condemnations which will result
from unleashing $45 billion to hungry federal and state agencies, as
well as conservation agencies. (Reports are that one of the leading
conservation agencies has been publicly counting on receiving millions
in CARA funds to perform their handiwork on the coastal properties
along the eastern coastline. Fire Island residents cannot rest easy
with the private property “protection” provided by this Section or any
other in the Bill.)
So, we are lead to Section 210 entitled “Water Rights.” This Section
fails to state that “all existing water rights are preserved,” or that
“Nothing in this Act, and no project funded with funds provided under
this Act shall effect or invalidate existing water rights.” That
language would provide some protection. And, that type of language is
well known to Congress---particularly to the western Congressmen who
have been lured by the Siren’s Song sent forward by CARA’s dollars.
That type of protective language has been used for decades to protect
existing rights from intrusion by new legislation. But, it isn’t here,
and its absence speaks volumes about the intent of this Bill.
Section 210 protects from pre-emption or invalidation such matters as:
State or federal water law or interstate compacts governing water use;
The rights of a state to any appropriated share of any body of water;
federal or state law or interstate compacts “dealing with water
quality or disposal” No non-federal conservation agency is conferred
any water right.
Not one word of the section relates to protection of private water
rights of the individual. Authority of the state is given some
protection; but there is nothing to protect existing and vested
private water rights. Not one word protects existing private water
rights against encroachment and intrusion under some cooperative
management agreement reached between the state and federal agencies to
use water for game refuges or habitat protection for any species.
All the so-called property protection sections of the Bill are
illusionary. Protection of water, and the cost connected, will be left
to the individual property owner who will also be paying the cost of
the assault on his or her water rights.
V.
CARA Crosses the Fine Line Separating the Legislative Constitutional
Authority From the Executive.
It
is apparent that CARA unconstitutionally delegates legislative
authority to the executive branch of government.
The Constitutional checks and balances provided through the separation
of powers are a cornerstone of our liberty! Montesquieu said: “When
the legislative and executive powers are united in the same person, or
in the same body of magistrates there can be no liberty; because
apprehensions may arise lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner.” The English
commentator Blackstone shared the opinion: “In all tyrannical
governments, the supreme magistracy, or the right of both making and
of enforcing the laws, is vested in one and the same man or one and
the same body of men; and wherever these two powers are united
together, there can be no public liberty.” (Blackstone,
Commentaries, Bk.1, chap. ii, p. 146)
If
the executive branch is given the authority to “make” law, and to
“enforce” law, the people have no check on executive power. The
Framers of our Constitution understood this principle of government.
As Mr. Justice Frankfurter said in a concurring opinion in
Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1951):
“The Founders of this Nation were not imbued with the modern cynicism
that the only thing that history teaches is that it teaches nothing.
They acted on the conviction that the experience of man sheds a good
deal of light on his nature. It sheds a good deal of light, not
merelyon the need for effective power, if a society is to be at once
cohesive and civilized, but also on the need for limitations on the
power of governors over the governed.
To
that end they rested the structure of our central government on the
system of checks and balances. For them the doctrine of separation of
powers was not mere theory; it was a felt necessity.”
In
the main opinion in Youngstown Sheet & Tube, written by Mr. Justice
Black, the Court pointed out that Article I, Section 1, of the
Constitution provides that “all legislative powers” are vested in the
Congress, and none are assigned to the executive. He pointed out that
the “Founders of this Nation entrusted the lawmaking power to the
Congress alone in both good and bad times.”
This much is clear: Congress makes the laws. The President
and his executive officers enforce the laws. But, the line between
making and enforcing can become imprecise.
Federal District Judge Thomas Hogan attempted to plot the line in
City of New York v. William Jefferson Clinton, 985 F. Supp. 168 (D.D.C.
1998) where he held the Line Item veto to be unconstitutional because
“it impermissibly disrupts the balance of powers.” He pointed out that
it is within the constitutional legislative power of Congress to
“delegate certain rulemaking authority to other branches,” but not to
“delegate its inherent lawmaking authority.”
Recognizing that the “line between permissible delegations of
rulemaking authority and impermissible abandonments of lawmaking power
is a thin one,” he pointed out that the United States Supreme Court
has held that:
“The true distinction…is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law.”
985 F. Supp. at 180 citing Hampton v. United States, 276 U.S.
394 (1928).
Analyzing the actual content of the Line Item Veto Bill, rather than
its intent, Judge Hogan then found that Congress had surrendered to
the President “an inherently legislative function, namely, the
authority to permanently shape laws and package legislation.”
He decided that the Line Item Veto Bill gave the President the power
to “expand to that of ‘co-designer’ of the law,” and that such power
of design is strictly within “Congress’ domain.”
How does CARA fit within this picture? Congress will provide $45
billion to be doled out of the Treasury over the next 15 years at the
discretion of the Secretary of Interior, for projects legislative in
nature and not yet designed by Congress or any legislative body. CARA
is the funding mechanism only. The law regarding land uses, species
protection, wildlife restoration projects, and all other projects in
the land control package will be shaped by the Secretary of Interior.
He will design and approve proposals legislative in nature. He will
package legislation to shape the outdoors and land and water use
policies for this nation for the next 15 years. The nature of this
Bill places it within the parameters set by Judge Hogan: the Congress
is delegating to the executive branch “the authority to permanently
shape laws and package legislation.” That is an impermissible
delegation of legislative authority.
Section 902 of the Commerce, et al appropriation (CARA “auxiliary”)
declares its very purpose to be the creation of “sound conservation
policies” by means of developing, revising and implementing a
“comprehensive wildlife conservation and restoration plan.” (Sec 902
(a)(2))
Development of “policies” which will set the parameters for land and
water use – federal, state and private – is inherently legislative.
The Clean Water Act, the Environmental Protection Act, the Endangered
Species Act, and countless other environmental and conservation
programs have been established by Congress as legislative packages.
CARA provides an enormous outline for executive packaging and shaping.
CARA encourages the Secretary to allow state executive (“fish and
wildlife”) agencies to participate in shaping these legislative
programs, so only the legislators will be left out of the shaping
process. The Separation of Powers as proclaimed by the Framers will be
turned on its head.
Section 902 allows the Secretary to pay the states to develop, revise
and implement “wildlife conservation and restoration programs” for all
wildlife species, which include the following:
(a) influence the “distribution and abundance” of any species selected
by the state;
(b) determine and take “actions” to conserve all selected species and
their habitats; and
(c) taking “conservation actions as appropriate to respond to new
information or changing conditions.”
These elements mirror the content of the Endangered Species Act,
except that they extend the potential protection to all species.
But, the most basic difference is that the ESA was legislatively
created, and Section 902 programs will be executively created.
The Line Item Veto only allowed the Executive to delete certain
legislative proposals, yet was found unconstitutional. CARA allows the
Executive to create and add programs inherently legislative
in nature.
Such delegation should not stand scrutiny under the analysis of Judge
Hogan.* [1] Citing Field v. Clark, 1443 U.S. 649 (1892), Judge
Hogan points out that the legislature has authority to…
“make a law to delegate a power to determine some fact or state of
things upon which the law makes or intends to make, its own action
depend.”
985 F. Supp. at 180, citing 143 U.S. at 694
CARA, and particularly the Section 902 CARA Auxiliary, delegates not
only the power to make the determination of when the law should apply,
but also the power to design, shape and create actions to be taken.
The Constitution “refutes the idea that [the executive] is to be a
lawmaker.” 985 F. Supp. at 181, citing Youngstown, 343 U.S. at 587.
Congress can avoid violating the Separation of Power clause by simply
refusing to enact CARA. If it persists in its current course, we must
attempt to overturn this Act.
Conclusion
CARA supporters claim that all the faults found with CARA are
insignificant. They claim that Congress has already established
entitlements to the extent that a large portion of the budget is
off-line. They claim that millions are already spent for land
acquisitions. They claim that Congress has consistently failed to
protect its appropriations power.
They assert that CARA should be enacted because it is supported by
Governors, Mayors and national associations representing cities,
counties and sporting groups. Such support illustrates how CARA begins
to unravel the threads, which bind the American tapestry. The fact
that so many organizations can support a wholesale attack on private
property makes it clear that a fundamental base of our heritage is in
clear and present danger.
In
his 1964 Acceptance Speech, after being nominated as his party’s
presidential candidate, the late Senator Barry Goldwater said:
“We Republicans see in our constitutional form of government the great
framework which assures the orderly but dynamic fulfillment of the
whole man as the great reason for instituting orderly government in
the first place.
We
see in private property and in economy based upon and fostering
private property one way to make government a durable ally of the
whole man rather than his determined enemy.
We
see in the sanctity of private property the only durable foundation
for constitutional government in a free society.”
What would he see in CARA? A frontal assault on that “durable
foundation” critical to a free society.
Never has there been such a broad-base effort to put private property
in government hands. If property owners do not rise in opposition to
CARA, over the next 15 years we will see a steady erosion of our
“durable foundation” in the disappearance of private property.
If
rural Americans, in particular, do not rise up, we will see
agricultural, natural resource oriented traditions of rural America
give way to urban concepts of “open space,” e.g. structural areas
maintained at taxpayer cost.
CARA supporters delightedly point to all that they can achieve through
spending 45 billion federal dollars. But, property owners know, as
Senator Goldwater knew: “The government gives nothing to its citizens
that it does not first take from them.”
Against overwhelming odds, Americans must forge ahead to resist CARA.
When it sunsets in 15 years, it will be too late to ever restore the
constitutional foundation of private property.
As
the noble members of the Light Brigade, CARA opponents must not be
“dismayed” by numbers. The poet said of the Brigade: “Boldly they rode
and well.” Let the same be said of those who undertake to stem the
CARA tide.
What Can We Do?
Many have asked the question. Try the following: Call your Congressman
and ask him or her to tell you why:
1.
Section 205 provides for a concurring seller rather than a willing
seller
2. Section 205 allows condemnation and provides that the Secretary
will submit a list of proposed condemnations, if in fact all purchases
are to be from “willing sellers”
3. Why the federal government needs more property, and why state
governments need more property
4. How the Bill specifically will protect inholders and owners of
adjoining property
5. Why the federal government sees it necessary to provide funds to
protect all species
6. How much will it cost to maintain the property which is acquired by
the government
7. How will established rights of way across private property be
protected when property is purchased by the government or a
conservation group
8. Why does the bill not include specific language to protect “all
existing water rights”
Add to this list as you review the language of the Bill. And, ask your
Congressman to point to specific language in the Bill, which backs
up his or her answers.
Background
Fred Grant is a native of Nampa, Idaho. He attained his B.A. from the
College of Idaho in 1958, majoring in History, with specialization in
Constitutional History and Law. He then attended the University of
Chicago School of Law. He served as Law Clerk to Chief Judge Brune, in
the Maryland Court of Appeals.
He
first worked as an associate at Lord, Bissell, and Brook; a Chicago
law firm representing Lloyd's of London. He continued to practice law
in the District of Maryland, where he was an Assistant United States
Attorney.
He
later became Assistant State Attorney of Baltimore, and then Chief of
the Organized Crime Unit, State's Attorney of Baltimore. He spent his
remaining time in Baltimore involved in criminal defense.
Grant has since returned to Idaho where he is an expert on land use
issues. He is the owner of Fred Kelly Grant Ltd., providing consulting
services in personnel and land use, and legal research. He is also
consultant to Owyhee County Natural Resource Committee and to the
Board of County Commissioners regarding Land Use Planning for the
federally managed lands in the county.
Grant has been a consultant to Stewards of the Range since 1997 and
currently serves on Stewards Board of Directors. He is also Chairman
of Stewards Litigation Committee.
*
The Hogan Separation of Powers Analysis is as yet untested by the U.S.
Supreme Court. His decision striking down the Line Item Veto was
upheld by the High Court, but it did not reach the Separation of
Powers Theory.
Publisher Information
Liberty Matters is a national property rights organizations whose
members would be directly affected by the Conservation and
Reinvestment Act of 2001.
Reprint permission is granted in whole or in part with attribution to
Liberty Matters.
Contact Us:
Liberty Matters
P.O. Box 1207
Taylor, TX 76574
1-800-847-0227
fax (512) 365-7391
e-mail: libertymatters@aol.com
website:
www.libertymatters.org