August 1, 1995

August 1, 1995 | Commentary on Legal Issues

ED080195d: Law of Our Land

When the government favors the "rights" of snails, owls and rats over the constitutional rights of property owners, it's time to question Washington's priorities.

The Supreme Court ruled recently in Babbitt vs. Sweet Home Chapter Communities for a Great Oregon that the feds can keep private landowners from developing their property if disturbing the land might bother the bugs or animals living there. The ruling was a setback for property owners who have been trying to save their land from environmental extremists who see endangered species under every rock. Once a listed species -- anything from a Kangaroo rat to the infamous spotted owl -- is found, your property rights may be in serious danger.

The Constitution's Fifth Amendment says no one will "be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation."

Because these rights aren't adequately codified in law, it has been left to the courts to provide protection.

The courts' rulings have been a mixed bag in recent years. In 1992, for example, the Supreme Court held, in Lucas v. South Carolina Coastal Council, that denying an owner productive use of his or her land requires appropriate compensation. This was a step in the right direction. But litigation is costly. Not everybody can afford to sue the government. And victory is anything but guaranteed.

Consider the Walker family of Oregon.

Donald Walker Jr. had worked as a logger for 30 years until August 1989 when his timber company was forced to shut its doors. He received a notice from the Forest Conservation Council informing him he could no longer log the land he, his father and grandfather had worked. The spotted owl must have a place to roost ¾ never mind the Walker family.

"I have never seen a spotted owl on our place, and I have never met anyone from the Forest Conservation Council. So far as I know, it's never even been on our farm. But I do have a typewritten, single-spaced, four-page letter from their lawyer saying that what we have been doing on our tree farm for 60 years is no longer legal ... The pressure on us now is hard to describe," Walker is quoted as saying.

Congress clearly needs to balance the legitimate rights of property owners against the continued encroachments of regulators.

According to Nancie Marzulla, president and chief legal counsel for Defenders of Property Rights, the Constitution's "just compensation" clause was meant to avoid making individual property owners bear the costs of "social goods," such as environmental protection, deemed to benefit society as a whole.

The choice, she stresses, does not have to be an "either-or": a livable environment or rapacious development. Bureaucrats must use common sense when designing environmental rules. And if the government feels it has a compelling need to keep business owners or individuals from using their property, it should compensate them -- just as the Constitution requires.

The House of Representatives earlier this year passed legislation as part of the Republican "Contract with America" allowing property owners to seek compensation for losses caused by federal restrictions on their land. Hearings have been held on a stronger companion bill in the Senate, known as the Omnibus Property Rights Act of 1995. A vote is expected in the fall.

These first steps toward recognizing property owners' legitimate rights is welcomed. Americans will know their government is just only when a new land law -- one that protects landowners -- becomes the law of the land.

Edwin J. Feulner, Ph.D. is president of The Heritage Foundation.

About the Author

Edwin J. Feulner, Ph.D. Founder, Chairman of the Asian Studies Center, and Chung Ju-yung Fellow
Founder's Office