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Private Property Rally, U.S. Capitol

Private Property Rally, U.S. Capitol
June 11, 1995
Becky Norton Dunlop

While he was president, Lyndon Johnson once opened a major speech to the nation with a grand flourish. Quoting Isaiah, who was quoting the Lord, he said, “Come, let us reason together.” Now, given my vision of Lyndon Johnson, I really don’t picture him, with his vast land holdings in Texas, worrying much about endangered spiders or beetles on his property. I can’t imagine him foreseeing the question of property rights as a contentious issue in the American political debate. But, if there is a political issue in America that deserves his admonition -“Come, let us reason together”- the property rights question is certainly that issue.

The burden is on those of us who love liberty, who love our natural resources, and who are supporters of the 5th Amendment of our Bill of Rights to the U.S. Constitution, to communicate appropriately our reasoned and reasonable message.

For example, not one American I know is interested in seeing the extinction of the American bison or the extinction of oysters in the Chesapeake Bay. It is imperative that this message be both carefully and clearly articulated.

If people who love both liberty and our natural resources wish to prevail in the current social and political climate -that is, if we want to rebut some of the ridiculous charges of our adversaries in the political arena or the media- then we must be very careful that we articulate a clear, straight-forward, and honest message. As always, we must start by being honest and rational with ourselves. We should clearly acknowledge that guilty polluters ought to pay for damages they cause, while at the same time, caring citizens who are good stewards of our environment deserve our thanks and appropriate incentives that will encourage their continued stewardship.

Responsible landowners who take pains to maintain their land, to preserve the plants and animals that live on their land, simply should not be penalized with arbitrary costs and heavy-handed regulatory burdens.

As we seek to articulate our message in a reasoned manner, we must acknowledge, for example, that government Wildlife Refuges can play a beneficial role in responsible conservation. But, rational and reasoning individuals must also demand that terms such as “wildlife refuge” or “endangered species habitat” be defined. Defining these concepts and describing what the government is trying to do may bring us to the nexus of the political debate -at least in terms of wetlands and endangered species.

As you visit and write to our elected representatives, you should ask them the difference between a “Wildlife Refuge” and an “Endangered Species Habitat.”  What is that difference -practically, philosophically, economically, and legally?

If the difference boils down to who pays the price -giving up the use of land, paying the property taxes- then that difference sets up a fundamental injustice in our society. Is the purpose and public benefit of today’s “Endangered Species Habitat” or “Wetland” the same as that of yesteryear’s “Wildlife Refuge?” Is the only difference the fact that some poor landowner is socked with the costs of unusable land, while he or she must continue to pay property taxes?

If thinking people can persuade elected officials, agency officials, and reporters to address that definition, we will win this debate.

So, we, who love liberty and our natural resources, must be clear with the media and with government officials that this is not a debate about the benefits of wildlife refuges or wetlands or municipal lakes maintained as drinking water reservoirs or any other beneficial use of land, which is directed by government for our collective good. We endorse and acclaim the collective benefits that a civilized society can appropriately accomplish through cooperative endeavors. That, however, is not the essence of this debate. This debate is about who pays for those benefits?

I do not pretend that the huge array of practical issues and complexities regarding property rights questions will be simple to solve. But, if we discuss these issues with a reasoned, common sense, scientific, and honest approach, we can come to a consensus that will promote the mutually desired benefits without egregiously violating the very tenets of our Constitution and America’s successful free enterprise system.

As this citizen effort works to replace hysteria with reason, we must also be clear to communicate the equally important message that stewardship -wise management of our natural resources- involves not only the collective, public stewardship of government initiatives, but also private stewardship, which is based on he concept of personal responsibility. Governmental stewardship’s best chance for success is if it is designed alongside its more important counterpart: private stewardship driven by personal responsibility. Once our society begins abdicating personal responsibility in favor of nebulous, collective responsibility, we will begin losing the battle to preserve our natural resources, our societal values and, foremost, our liberty.

In that regard, if we do not reward good personal stewardship, we may open ourselves to unintended, perverse results. Just look at the ironies involved when government policy denigrates, good, proper private stewardship over government action. I learned of one example in an isolated section of Virginia’s Blue Ridge Mountains. Several ladies in one of the rural counties in that part of Virginia used to visit one of the mountain plateaus where they had found a particularly expansive patch of the lovely wildflower called “Lady’s Slipper.” They previously used this patch as an occasional source for plants in their efforts to propagate, maintain, and enjoy this magnificent flower in their private yards. As good stewards, these local ladies occasionally took one or two plants from the hundreds in this beautiful patch. These ladies, rooted in their rural landscapes, recognized that the “Lady’s Slipper” was a rare creation of God. Accordingly, they acted with reverence and responsibility to enhance and propagate the species.

More recently, that particular species has been designated as endangered. Did this act of government serve to protect this isolated patch of “Lady’s Slipper” in this isolated stretch of the Blue Ridge? On a recent foray into their old stomping grounds, these ladies found that the patch of “Lady’s Slipper” had been discovered and the entire patch dug up. By whom and why?

These ladies speculate that the purported “protection” of this flower is leading to its demise by creating an underground market. Right or wrong, you cannot argue with them when they insist the Endangered Species Act did nothing to help them in their quest to maintain and preserve this rare and precious creation of God in the Blue Ridge Mountains.

Just as the unsuccessful ban on ivory punished the good stewards who were successfully expanding elephant herds in Botswana and South Africa, laws such as the Endangered Species Act and wetlands regulations can result in unintended, perverse consequences in Virginia and the United States.

What about the people who once prized and were responsible for the husbandry of rare species? Now they must fear that the plants or animals they once worked to preserve may now, or in the future, brand them as lawbreakers or bring government officials onto their land. So, what do they do? They simply stop nurturing these rare creations.

We must carefully and calmly remind our elected officials of the unintended consequences that even the best-laid plans may yield. We must remind them that people, citizens who otherwise might be caring for precious flowers or animals, will no longer want those creatures on their land if the result leads to bureaucratic nightmares and regulatory mazes. Instead, the perverse incentive for some people might well be to rid their properties of these “endangered” plants and animals.

Do we really want that? No, of course not. What we want and need are constructive incentives and rewards for responsible stewards of our environment. We want benefits that are not outweighed by the costs. And we want the costs to be borne by the full public, which are deriving the benefits.

The journalist and author H.L. Mencken offered some good advice: “There is always an easy solution to every human problem -neat, plausible, and wrong.” In the quest to protect and clean up our environment, noble goals have often led to neat, plausible and yet wrong approaches.

Extremists do their cause of environmentalism an injustice. More often than not, they are unwilling to evaluate and criticize the effects of our environmental laws and regulations. People who perceive that any criticism of these laws is a criticism of responsible conservation are wrong, wrong, wrong. If we cannot change some of the well intentioned, although perverse, results of our environmental laws, we will end up protecting nothing.

Most important, if we force the heaviest costs of preserving our environment on a few individuals, rather than the broad public which benefits, then the result will surely be a disintegration of any broad public support for reasonable, well-crafted environmental policies.

You may hear the argument from your elected representatives that new statutes are not needed

-the courts are adequately protecting private property owners and have offered them the appropriate redress. If so, ask those officials if they feel the same about the statutes that have been passed to protect civil rights under the 14th Amendment. Would they propose that the consistent court protections for civil rights are enough and that, therefore, the full body of civil rights laws ought to be taken off the books? Indeed, statutes are passed for the very reason of protecting and ensuring citizen rights under our Constitution.

I trust that you will continue to lobby your elected representatives in the U.S. Congress and your state legislature. As you do that, please remember to focus on the issues that represent the essence of our argument:

  • We are not here to discuss the wisdom or goodness of any particular government uses of land, but rather simply to talk about making a private landowner pay when government mandates a particular use or nonuse of his or her property. Recall, Amendment V: …nor shall private property be taken for public use without just compensation.
  •  Our state and federal regulatory agencies need guidance from lawmakers on this critical constitutional issue, which significantly impacts many regulatory activities -well written statutes can provide that guidance.
  • Using or transferring private property is not a benefit or privilege granted by Congress or state legislatures -the right to private property is a civil right clearly articulated in the Bill of Rights of both state and U.S. Constitutions.
  • When a constitutional right is allowed to be abridged, the values of all constitutional rights are diminished.
  • Restriction of private property rights does more harm than good for the environment. People tend to take care of that which they own. Although public property is theoretically owned by everyone, in practice, however, public property is cared for by no one. Examples of this are legion at the federal, state, and local areas, not to mention across the globe.

By returning reason and sanity to this debate, we cannot lose. The Constitution’s Bill of Rights is too important a compact to allow extremism and its characteristic irrationality to prevail. The right to own property is moot without the right to use that property. Land that is set-aside for the public good, in accordance to the Bill of Rights, is land that the public must pay for. The ultimate legal solution may take some work, but the issue is really that simple.