Property Rights and Wrongs

Boehner and Butler were able to beat fellow Republicans into a froth of fear and loathing. In what she called a "news release" Rep. Cathy McMorris Rodgers (R-WA) misinformed constituents that the bill "weakens private property rights" and that "the designation requires a freeze on any physical alteration to the land and allows the National Park Service to prohibit projects on federal land and tighten zoning restrictions on private land. Private ownership of property is a fundamental constitutional right and it is deeply concerning to see this right trampled on by politicians and judges in Washington D.C."

"If you've got time for this bill that's about a river, you have time to protect this country," Rep. Pete Sessions (R-Texas) told his fellow congressmen. "We've got time to pick on private landowners and to take their land."

The shrill disinformation campaign worked--at least temporarily--and on July 11, 2007 the House defeated the bill. "Last week, House Republicans scored another victory for the American people by defeating misguided legislation that would damage private-property rights by leaving the door open for federal condemnation of land and placing restrictions on private property," crowed Rep. Bob Goodlatte (R-VA) in a property-rights rag called The New Dominion. "This legislation would have severely restricted property rights along 25 miles of the Eightmile River.... I am pleased that this legislation, which would allow Washington politicians to condemn or restrict the use of private property at will, with or without just compensation, was defeated on the House floor."

Aping for his constituents, Boehner wrote this in a newspaper op-ed: "Just when you thought it was safe to enjoy your backyard, the government launched another ill-fated assault on private property rights.... The Eightmile Wild and Scenic River Act would have locked land under government control--preventing private use--and thrown away the key.... In recent years, local governments have tried to broaden their power of eminent domain to allow municipalities to take land from one party and give it to another to improve the local economy. That's not what the Founding Fathers had in mind when they wrote the 'Takings Clause' in the Fifth Amendment stating that 'private property [shall not] be taken for public use, without just compensation.'"

It never ceases to amaze me how elected officials can prevaricate like this and continue to be believed by their colleagues and the public. Still, even the dullest minds eventually tune out when those who address them shout every word. And when Courtney reintroduced his Eightmile bill on July 31, 2007 there were enough Republicans on board for the required two-thirds majority. At this writing, the bill's prospects in the Senate appear bright.

It isn't just moving water that is threatened. Now that the Great Lakes have been cleaned up, developers and the property-rights groups that front for them lust after the land below the ordinary high-water mark. But this land, alternately inundated and exposed depending on precipitation, has always belonged to the public. For fish and wildlife it is far and away the most productive habitat anywhere in or near the lakes. Hunters, anglers, swimmers, birdwatchers and hikers depend on it. When it's flooded, vessels navigate over it. Public ownership is guaranteed by the Public Trust Doctrine, a state and federal law long tested by the courts and older than the union. But by sleight of hand and volume of voice the developer/property-rights axis has convinced politicians otherwise.

For example, certain Michigan resort owners and lakefront residents wanted white sand beaches; so, in the name of property rights and under the banner of "Save Our Shoreline," they flimflammed state legislators into passing a "beach grooming" law in 2003. Who isn't for good "grooming?" The word has an appealing, hygienic ring to it. But "grooming" turned out to be a euphemism for the mechanized gouging out of wetland vegetation, including plants that provide nursery habitat to juvenile gamefish.

"We killed it but only after more than a year's worth of habitat destruction," says Brian Preston, the National Wildlife Federation's regional representative for Ohio, Michigan, Kentucky and Indiana. "They went in with plows, dug down two and a half feet to remove root systems. We had to come back the next year with the Fish and Wildlife Service to explain that these weren't 'beaches' but wetlands with a 30-year-cycle."

Titillated by the spectacular, if temporary, success of Save Our Shoreline and engorged with funding from the Ohio Homebuilders Association and the Ohio Association of Realtors, property-rights zealots in Ohio organized under the "Ohio Lakefront Group." They blitzed the media with claims that they had been bullied and abused by Big Government, that they--not the public--owned to the low water mark; and they sued the Ohio Department of Natural Resources (ODNR) in an effort to end public ownership up to the ordinary high-water mark or be compensated for what they allege is a "taking" of "their" beaches. Members are blocking angler and hiker access with illegal fences and illegal signs. At least one property owner has built an impassable wall of zebra mussel shells on each side of what he fantasizes is "his" beach. Meanwhile, the state sits on its hands.

At the same time the Lakefront Group has also prevailed on state Sen. Timothy Grendell (R-Chesterland) to file what appears to be unconstitutional legislation that would cede members the dry beach along virtually the entire 262-mile Ohio shore. And they've intimidated Ohio Governor Ted Strickland into implementing an apparently illegal policy by which property owners can be excused from leasing public-trust land from the state (usually at an annual cost of two cents per square foot) for such development as jetties, seawalls, groins and wharfs merely by producing deeds that claim they own to the low water mark. The deeds--containing language inserted by previous sellers to replace such vague references as "to the lake shore"--are, by definition, bogus because it is impossible for any previous owner to sell or give away something he never owned.