🚀 go-pugleaf

The following speech on Property Rights,
entitled The New Politics, was given by
Sierra Club Executive Director Carl Pope.
It is also available on the Web as

http://www.sierraclub.org/sc-action/newpolitics.html


The New Politics

Carl Pope, 
Executive Director, Sierra Club
Speech to the Commonwealth Club, San Francisco, California,
June 31, 1995

----------------------------

	We have a new politics.  In the name of conservatism, it is radical.  
In the name of traditional values, it rejects both American traditions

and values.  In the name of private property, it destroys the public 
trust.  It is the politics of the frontier, not of the neighborhood.
It 
confuses a community with a sack of tomatoes.  

	If I buy a sack of tomatoes, I own them.  I can take them home 
and cook them.  I can chop them up for a salad.  I can let them
attract 
fruit flies on my counter.  Letting them rot is wasteful.  My friends,
my 
children, and my church may urge on me that I should put them to 
good use.  But I doubt that anyone here would propose a law telling 
me that I must eat them, or that I may not.

	In America, land has never been a sack of tomatoes.  No 
American court has ever ruled that a landowner could do anything he 
wanted with his land.  No one in America has ever received a real 
estate title bearing that promise.  

	But now we have a new politics.  This politics speaks of property 
rights, but it means by property rights something radical, not 
something conservative.  It means by property rights something new, 
not something traditional.  It means the end of both human and 
natural communities.  It would abandon the entire web of public 
obligations undertaken by those who own land, obligations that we call

the public trust.  It substitutes for that traditional idea the
concept that 
each landowner is a sovereign state, immune from regulation and 
obligation to his neighbors.  This new politics would allow every 
landowner virtually to secede from the union.

	Land is real estate.  Real, in this case, does not mean solid.  It 
means royal; land came from the king.  In England, kings gave out 
lands to their feudal retainers.  In the 13 colonies, land was held by

virtue of royal charters.  In the new states, the federal government 
either purchased or conquered new lands, and then sold or gave it 
away to settlers.  This culminated in the Homestead Act.  It remains
in 
force only in the vestigial if extremely profitable form of the Mining

Law of 1872.  

	When the kings, or the federal government, conveyed land to 
settlers, they also conveyed restrictions.  Until the adoption of the 
Constitution, land could be taken for public purpose without 
compensation.  Indeed, until after the Civil War, many states retained

the right to do, and even once the 5th and 14th Amendments 
established the right of compensation when land is actually taken,
land 
carried with it numerous restrictions.  Land was, and always has been,

infused with a public trust.  Kings and Congress, when they awarded 
ownership of land, retained the right to protect the surrounding 
community by regulating the use of that land in the public interest.

	What restricted a landowner? Among other things, he owned the 
land, though not the wildlife on the land, which was the king's, or
the 
public's.  Nor does he own either surrounding public land or the right

of access to such land.  He couldn't deny the public access to
tidelands, 
which were publicly owned, or to the beds of rivers or the shore of 
lakes.  He couldn't impede navigation.  His right to utilize the
surface 
and underground water flowing over and under his property were 
subject to elaborate, highly variable, and changeable, state doctrines
of 
water rights.  His right to develop the land was subject to zoning and

land-use planning.  His use of land could not constitute a nuisance
for 
his neighbors, and was subject to a wide range of restrictions by the 
state and local governments -- indeed, the only right he clearly and 
unequivocally enjoyed was the right to occupy his property and to keep

others from occupying it -- so long as it did not impinge on access to

waterways, traditional rights of way, trails and roads, wetlands and 
beaches, and on and on.

	In recent years, the courts have clarified two related issues.  One 
is that if government regulation so limits use of land as to deny the 
owner of any economic use, this constitutes a taking and must be 
compensated.  The other is that if an owner makes an investment in 
his land with reasonable assurance from government that he will be 
allowed to utilize the investment in a particular way, and government 
then denies him the right to complete or carry out the project, he may

have lost a "reasonable investment based expectation" and may be 
entitled to compensation.  Different state constitutions and courts 
allowed greater or more limited rights to property owners.  In 
California, access to the beaches is guaranteed by the State 
Constitution -- in Connecticut it is not.  In California, the
existence of 
zoning for a use does not create an investment based expectation, so 
government may down-zone without compensating.  In Virginia, it 
may not.

	However, no state has historically treated land like a sack of 
tomatoes.  Kings, Congress and states have all understood that the 
public was not well served by making each property owner a 
sovereign; that the public welfare required the protection of the
public 
trust.  No state, indeed, has allowed all of its land to enter private

ownership.  Government, state and federal, has retained ownership of 
land where the public trust values seemed to be higher than the 
benefits of private ownership.  Land is owned for highway rights of 
way, for schools and post offices -- but also to ensure open space,
and 
preserve scenic corridors, to provide parks and recreation areas, to 
preserve wildlife habitat and watersheds, to guarantee forests for
future 
generations and to allow the military ample room to train its troops 
and test its weapons.  Government owns land to provide sites for 
publicly owned housing, and maintenance yards for public transit 
systems.

	Government owns land, and restricts the use of privately owned 
land, for a simple reason.  Land is the skeleton, and the circulatory 
system of a community.  It is the blood and bones of our society.
Land 
lies next to other land.  Its use, or abuse, effects everyone.  My
back 
yard is the view out your window.  The traffic that flows to the 
shopping center clogs the streets of its neighbors.  If I destroy a
bald 
eagle nesting site on my wood lot, I am destroying everyone's eagles.

If I erect a fast food restaurant next to your house, your property
values 
go down.  The music from my late night cabaret does not stop at your 
bedroom window.  That is law.  It is common sense.  It is the 
American tradition.

	Now it faces a fundamental challenge.  Five states -- Washington, 
Florida, Texas, Mississippi and Louisiana -- have now enacted 
"takings" bills which relieve landowners of the obligation to respect 
the public trust.  Virtually every state, including California, faces
such 
legislative proposals.  The leading Republican candidate for
President, 
Senator Robert Dole, has introduced legislation to nullify the
authority 
of the federal government to act to preserve the public trust.  Some 
members of Congress even call for the disposal of all public lands, 
even the National Park System.  They say the federal government has 
no right to own or limit the use of land.

	This  movement would vest in landowners' rights worth trillions 
of dollars -- rights they do not own -- rights they never paid for.
It 
would force the general public to buy them back if we wished to ensure

that blight does not invade our neighborhoods; development wall off 
our beaches; filled wetlands flood our streets; or clearcutting clog
our 
streams and eliminate our wildlife.  This new politics is not
concerned 
about logic, tradition, or common sense.  Let us look at some of its 
contradictions.

	Under this radical takings doctrine, if two of us own parcels 
across a creek, and every winter the creek rises and floods half of
our 
yards, I have a right to fill my parcel so that all of yours floods
next 
winter.  This is my right, and you have no right to prevent me.  But
if 
you go the county Board of Supervisors, and ask them to enact a 
wetlands ordinance, one that prevents me from flooding all of my 
yard, in order to protect half of yours, I have suffered a taking, and

must be compensated.  Under their rules, government would have to 
pay to the regulated far more than the regulations cost.  

	Imagine that there is a market for a fast food restaurant on my 
block but zoning regulations do not permit it.  Imagine under these 
proposals that I am denied my right to build a drive through burger 
joint on my property outside your living room and that the franchiser 
would have paid me $50,000 to build it.  I am turned down and then 
am able to collect $50,000 in compensation from the county.  The 
franchiser then offers his proposal to the couple across the street.
The 
city rejects their variance as well.  The taxpayers fork up another 
$50,000.

	You see the logic.  The same "loss" can be suffered time and time 
again although the market would have supported only one such drive 
through window.  The only end to this hemorrhage of public dollars? 
Build one neon restaurant on every block with the profits flowing to 
the greediest neighbor or the one who most dislikes his neighbors.

	The property rights radicals would dispose of our national parks 
because government owns too much land already.  But they would 
require government to purchase any land which was infused with the 
public trust, any land which served the needs of community.  Because 
that is a public good which must be purchased by the public -- even if

the same public has never sold this public trust in the first place.

	Let us look at some other property rights which the new politics 
has found to defend.  The League of Private Property Owners, 
headquartered in Battleground, Washington, the Center of the new 
politics, published a Congressional voting Chart for 1993-1994.  Here 
are direct quotes about some of the  legislation that they identified
as 
protecting or threatening private property rights:

Increasing Mining Royalties and Grazing Fees on public lands --
"Mining claims on federal lands are property rights.  The current 
grazing fee formula takes account of a permitee's private property 
rights."

Blocking Interior Secrertary Babbitt's Grazing Regulations --"Grazing 
permits result from pre-existing property rights.  These rights are
well 
documented throughout western water and land-use law."

Mojave National Monument -- "Thousands of mining 
claims,numerous operating mines, and grazing permits would be 
included inside the boundaries of the new parks and wilderness 
areas.... Property rights supporters sparked significant opposition."

Forest Service Road Budget -- "To reduce the Forest Service 
roadbuilding budget by $11.9 million.  In addition to timber
producers, 
these roads have multiple uses; private property inholders, mining 
claimants, grazing permittees and recreationists use them as well.  
Without access, private property is worthless...."

National Biological Survey Volunteers --  Rep.  Billy Tauzin offered 
an amendment forbidding the National Biological Survey from using 
volunteers.  "Defenders of private property voted yes.  Volunteers 
could have self interested motives to find endangered species and 
would be much harder to control through civil service regulations than

federal employees."

Mining Law Repeal -- "The General Mining Law of 1872 provides 
incentives to encourage people to discover and develop minerals .... 
The bill would radically change this system...".

Montana Wilderness -- "Rep.  Pat Williams' bill would create 
newwilderness areas in Montana totaling 1.6 million acres.  Mining 
and other activities would be prohibited within these areas...".

	None of these votes relates to government regulation of land 
owned by private individuals -- all relate to the special rights of
private 
individuals to access to public resources and publicly owned lands by 
virtue of their status as landowners or commodity exploiters.

	The takings movement has also argued that landowners on Fire 
Island, New York, have a property right to subsidized federal flood 
insurance because such insurance increases the value of their
property.  

	But while the advocates of the new politics find property rights 
almost everywhere (particularly on public land), they simultaneously 
assert that private property and community collide only rarely.  
Recently, the Supreme Court ruled that the Endangered Species Act 
protects a bald eagle's nest before the egg is laid as well as after
it 
hatches.  Habitat is protected, said the Justices.  There were three 
dissenters, who lamented that under the decision property could be 
"conscripted for a national zoological purpose."

	Implicit in the dissent in the entire rhythm of this new politics is 
the idea that most land serves private purposes only, that only an 
occasional landowner is called upon to redeem the public trust, and 
that this summons thus constitutes an arbitrary and unjust 
appropriation.  This might have been true when several million Native 
Americans lived upon this continent as hunter gatherers limited by 
numbers and technique, unable to go beyond the early extinction of the

mammoth and saber tooth, to destroy the land itself.  But 300 million 
Americans driving Ford Broncos eating at McDonalds and aspiring to 
a modest approximation of O. J. Simpson's house, must pay the price 
of their wealth and their numbers.  They cannot live as unconstrained 
as frontier Americans.  Power has its price, affluence its 
responsibilities.  We cannot live alone.  We are part of communities 
even if we do not much like them.

	And land is the blood and bone of community.  In different ways 
every owner must expect restrictions if that blood and bone is not to
be 
severed and drained and splintered way.  Every parcel  is imbued with 
some part of the public trust.  Every land owner must at some moment 
acknowledge that no man, and no lot, is an island.

	At this moment you may wonder whether I exaggerate.  Is this 
new politics real? Is it serious? Does it sit upon the tattered edges
of 
our society or in the seats of power?

	Here are some quotations:

"The federal government  doesn't have a right to own any lands, 
except for post offices and armed forces bases."  -- Representative 
Barbara Cubin, R-Wyoming.

"When Lincoln freed the slaves, he did not pay for them, and that was 
a taking." -- Marshall Kuykendall, head of Take Back Texas, a takings 
group. 

"The land-owning programs of the federal government fit very well 
into the ongoing building of socialism in the United States." -- the 
John Birch Society.  

	According to the Floridians for Property Rights, "When a person 
owns property, he or she has a piece of `sovereignty' because he or
she 
controls that property.  Just as the freedom of speech prevents 
government from dictating what can be said, freedom to own property 
prevents government from dictating what can be done with property, 
with the important exception of `compensated' interference for the 
public good.  Without the requirement of compensation, there would 
be no true property rights." 

	This new politics does not come from the Constitution or our legal 
traditions.  Let me quote from the Supreme Court decision in the 
Lucas Case, written by Justice Scalia and signed by Justice Rehnquist,

the two most conservative members of the Court.  "The property owner 
necessarily expects the use of his property to be restricted, from
time to 
time, by various measures newly enacted by the State in legitimate 
exercise of its police powers....  Government could hardly go on if to

some extent values incident to property could not be diminished 
without paying for every such change in the general law...".

	The new politics does not come from the traditions of either of our 
political parties.  While many of the advocates of radical property 
rights are Republicans, this new politics is profoundly hostile to the

very concept of the res publica, the public realm.  While many 
advocates of this new politics are Democrats, it is profoundly hostile
to 
democracy itself, which rests on the concept that "We the people ... 
provide for the common welfare."  There is no republic, and no 
common welfare, in this vision.  Only the sovereign landowner, on his 
sovereign parcel.  

	If it does not come from the Constitution or the courts, from the 
traditional values of the Republican or Democratic parties, where does

this radical vision of property as a sack of tomatoes come?  From the 
frontier.  What was the cry of Daniel Boone? Elbow room.  Land 
enough that it could be used without worrying about the neighbors.  
Because it had no neighbors.  Not land as the blood and bones of a 
community, but land to escape from community.  Land to exploit and 
then to move on.  Elbow room.  Government ownership of land was 
rejected by frontiersmen who saw no community, no owners, and who 
to establish that vision decided that the native Americans who had 
stewarded  the land before them were not human.  Government 
regulation of land in the interest of community was rejected for the 
same reason.  Treaties with the Indians were violated at the point of
a 
gun.  Land, to a frontiersman, was a commodity, a source of food, a 
sack of tomatoes, and a passport out of society.

	It is not accidental that the property rights movement overlaps so 
heavily with the members of the militia and other advocates of 
establishing public order on the basis of an armed populace, with 
justice flowing to the fastest draw, and Dodge City, next year's
winner 
of the All American City award.  Self-defense as the basis for law and

order; land as a commodity to be used up; neighbors as a blight to be 
escaped; this was the frontier promise.  It is now offered to us as a 
nightmare, and as the basis for our new politics.

	But we can awaken from this nightmare.  We can.  If we wake up 
from the politics of indifference and cynicism; if we pay attention to

what those who govern us do as well as what they proclaim, if we do 
not turn the dial from the democratic debate to the O. J. Simpson
trial, 
if we commit ourselves to the values of the Republic, as well as of
the 
shopping mall.

	When we talk of values, we should listen to Aldo Leopold's raspy, 
conservative Midwestern voice, speaking to us from the Sand Country 
of Wisconsin: "All ethics so far evolved rest upon a single premise: 
that the individual is a member of a community of interdependent 
parts.  His instincts prompt him to compete for his place in the 
community, but his ethics prompt him also to cooperate (perhaps in 
order that there may be a place to compete for).  The land ethic
simply 
enlarges the boundary of the community to include soils, water, plants

and animals, or collectively, the land.  A land ethic changes the role
of 
Homo sapiens from a conqueror of the land community to plain 
member and citizen of it.  It implies respect for his fellow members, 
and also respect for the community as such."

    As we look out at both our human and our natural communities, 
and as we listen to the voices of a new politics which would destroy 
both, we may finally be ready to recognize the truth that Leopold 
preached: We cannot maintain human communities without respect 
for natural ones.

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