Property Rights and Wrongs

Like the meteors of a troubled heaven, property-rights groups explode, then trail into blackness. But others keep appearing under new, often Orwellian names: "the Wise Use Agenda," "the Sagebrush Rebellion," "County Supremacy," "the Lakefront Group," "Save our Shoreline," "Property Rights Alliance," "Liberty Matters," "Friends of the River," "People for America," "Alliance for America," "National Inholders Association," and on and on. The movement has always been hard to neatly define because even those involved aren't exactly sure why they are so angry or how they have allegedly been aggrieved.

All property-rights zealots, however, share obvious diagnostic features. They are incited, financed and used by developers and extractive industry. They have a fundamental misunderstanding of constitutional law, believing that state and federal regulations that prevent them from doing things like filling wetlands or diverting trout streams constitute "takings," requiring "just compensation" under the Fifth Amendment. They resent people who are financially more secure (in their minds, most of society), especially fish and wildlife advocates from the East. They are supremely ignorant of the basic philosophical foundations of their own (Republican) party, whose patron saint, Teddy Roosevelt, declared: "Every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it." They detest government and government regulations but demand government protection and government services. Many hunt and fish, but all seek to undermine protections for habitat.

Sierra Club director Carl Pope--an ardent defender of hunting and fishing, and grandson of iconic outdoor writer Ben East--offers this assessment of the property-rights movement: "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. 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."

But in our society if you lie long and loud enough, you often get your way. Consider, for example, the influence of the property-rights movement on protection of our best rivers under the Wild and Scenic Rivers Act of 1968. Wild and scenic status preserves and promotes rivers by giving them national attention, prohibiting new dams and other fish-killing projects, limiting inappropriate streamside development, and mandating comprehensive management plans. It also brings in federal funds for water-quality monitoring, outreach and education, and the purchase of watershed property from willing sellers.

Currently, 3,400 American rivers meet criteria for wild and scenic status; but, thanks in part to property-rights zealots and the special interests that fund them, only 168 have been designated. The antipathy is hard to figure (at least by rational standards) because wild and scenic designation specifically prohibits the state and feds from licensing dams and other projects that would degrade a river, thereby protecting private property by virtually eliminating the threat of eminent domain.

The West Branch of the Farmington River in western Massachusetts and Connecticut is one of the prettiest and most productive wild trout streams in the East. An attempted heist of the flow by the State of Connecticut in 1981 to "accommodate" (read "promote") streamside development kicked off an interstate, eight-town study to see if the river met wild and scenic criteria. It did.

Then, a decade later, all eight watershed towns (four in each state) voted by overwhelming margins for wild and scenic status for the 11-mile stretch in Massachusetts and the 14-mile stretch in Connecticut. After all, even for people who genuinely wanted to defend their property and the real rights guaranteed to them by the Fifth Amendment, there was nothing to lose and much to gain. The ever-present, if remote, threat of eminent domain would take wing. There would be no federal land management and no federal land acquisition. All control and use of watershed land would remain the responsibility of local governments. Certain types of wetland plants would be protected, and a setback of 100 feet would be required for new septic tanks, but there would be no new impediments to development.

Still, the proposal offered property-rights groups an opportunity to preen, posture and promote. Descending on the little Massachusetts towns of Otis, Sandisfield and Tolland and whipping up paranoia like the Music Man were the Upper Delaware Citizen's Alliance (an outfit dedicated to repealing wild and scenic status for New York State's upper Delaware River) and the Alliance for America (sired by a tax-fraud felon named Alan Gottlieb and funded by electric utilities, and mining, timber and oil companies).