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