Land Stakes

Supporters of federal power privatization have learned a lot from failures in the last Congress.

Rick Henderson from the May 1997 issue

Property Matters: How Property Rights Are Under Assault--And Why You Should Care, by James V. DeLong, New York: The Free Press, 390 pages, $27.50

This Land Is Our Land: How to End the War on Private Property, by Congressman Richard Pombo and Joseph Farah, New York: St. Martin's Press, 225 pages, $22.95

Over the past couple of years, supporters of limited government and individual rights have been puzzled and disappointed by the surprising speed with which the political momentum of the property rights movement has vanished. Beginning with the publication of Richard Epstein's Takings in 1985, the intellectual and legal communities started re-evaluating the role of the regulatory state in the American constitutional system, especially as regulations affected landowners. Epstein's argument--that regulators who denied property owners the use of their land were "taking"it, and that owners were therefore owed compensation, as in cases where the government explicitly exercised the power of eminent domain--caused state and federal courts to begin placing limits on bureaucrats and legislators. In the most noteworthy cases--Nollan v. California Coastal Commission, Lucas v. South Carolina, and Dolan v. Tigard--the U.S. Supreme Court somewhat haltingly admitted that, yes, the right to own and use property may be constitutionally protected. At the same time, grassroots property rights groups began to spring up, demanding legislative relief from the actions of overreaching elected officials and bureaucrats.

The 103rd Congress, under Democratic control, came close to enacting limited reforms that would have provided compensation for landowners when some of these "regulatory" takings occurred. And even though a stand-alone compensation bill didn't pass, that Congress was able to stop the creation of the National Biological Service, a new federal agency that would have given government employees and "volunteers"from environmental groups broad powers to trespass. As these persons attempted to inventory all the plants and animals in the territorial United States, the NBS would have let them enter private property without the consent of its owners. After the election of a Republican majority in 1994, as part of the Contract with America the House of Representatives passed a takings compensation bill by an astounding 277-141 margin.

Yet before the Senate could bring a similar takings bill to a vote, the entire Republican "revolution"fizzled. As a smaller, chastened Republican majority takes charge of the 105th Congress, takings compensation bills have disappeared from the legislative agenda. What halted the property rights juggernaut?

In part, property rights activists haven't been able to build political coalitions large enough to counteract the scare tactics environmentalists so effectively use. (See "Property Frights," May 1996.) And the property rights movement has lacked systematic, accessible defenses of its position a lay reader could appreciate. Epstein's book is important, but it is heavy reading. Meanwhile, farmers, ranchers, real-estate developers, and residential landowners can cite examples of outrageous actions by regulators (and, in some cases, by courts). But these anecdotes have for the most part been published in internal newsletters, by vanity presses (sometimes featuring dubious scholarship or conspiracy theories that would cause believers in alien abductions to shake their heads), or in such ideologically sympathetic publications as The Wall Street Journal editorial page, National Review, and REASON. Professionally written and edited book-length treatments of the contemporary property rights controversy--volumes that lay readers can find in better bookstores alongside other mass-market nonfiction works about current issues--haven't existed. Until now.

While intended for slightly different audiences, Property Matters, by Washington, D.C., attorney James DeLong, and This Land Is Our Land, by Rep. Richard Pombo (R-Calif.) and veteran conservative writer Joseph Farah, are accessible, useful primers for readers who want to know why a grassroots property rights movement has emerged and why it has assumed a warlike footing.

Pombo, a cattle rancher from the Central Valley of California, has been a lightning rod on environmental issues since he was first elected in 1992. He has sponsored revisions of the Endangered Species Act that would allow property owners to receive compensation if the discovery of threatened or endangered species on private land caused the property value to fall. Newt Gingrich also chose Pombo as the co-chairman of the House Environmental Task Force, a group of Republican legislators that vets all environmental bills before they come to the floor for a vote. (See "Natural Lite,"October 1996.)

Pombo targets his book at a conservative audience, citing a biblical defense of property rights, reminding readers that the Founders explicitly protected property in the Constitution, and offering occasional (if somewhat superficial) attacks on central planning. He describes how wetlands have been transformed in the public mind and the public law from swamps that breed disease-bearing critters to altars at the environmental church. And he explores the growing "eco-federal"coalition of environmental advocacy groups, government regulatory agencies, and congressional appropriators.

By consistently portraying environmentalists as antagonists, Pombo should have no problem convincing an audience that may agree with him anyway. And by selecting as his co-author Joseph Farah, who worked with Rush Limbaugh on his second book, See, I Told You So, he has found a collaborator well-suited to appeal to readers who are politically engaged but aren't policy wonks.

But there's a troubling blind spot in this book. The explosive growth in the population of the West could never have happened without the massive government water projects that were started during the New Deal. Unlike the eastern United States, where water was plentiful and land scarce, in the West land was cheap and water dear. As DeLong explains in Property Matters, the Homestead Act of 1866 gave away 160-acre parcels of land to anyone who would stake a claim: East of the 100th Meridian, where 40 or more inches of rain fall every year, 160 acres of farm land would easily support a family. In the rain- deprived areas west of the 100th, however, such plots were worthless--unless they were located along a river or lake. Harnessing Western rivers made large-scale agriculture possible and helped support the migration of people from the East and the South.

Much development in the early West depended on water socialism. Before World War II, the easiest way to move massive amounts of water to Western lands was to build dams or otherwise divert rivers. (The centrifugal pump, which became widely available in the late 1940s, made it possible to reliably pump ground water to the surface.) Pombo's book doesn't mention the thorny problems caused by socialized water, a curious oversight, since his Central Valley congressional district would certainly be less populous and less prosperous without it.

You'll find no such gaps in James DeLong's Property Matters. Rather than offering sustenance to beleaguered fellow travelers, DeLong instead tries to win over skeptics and potential opponents. The result is a book that's engaging, well-argued, and openly cognizant of the complexities of politics and the law. DeLong goes beyond the familiar areas of wetlands, endangered species, and grazing to incorporate historical preservation, zoning, and even intellectual property in his discussion.

After opening with a few familiar horror stories, DeLong provides some historical background and then spells out his own principles, which are closely tied to those of John Locke. Locke explicitly rejected the feudal notion that the control of property is entrusted by God to the crown, arguing rather that property belongs to individuals. "Property does not have rights,"DeLong writes. "People have rights, including the right to hold property. Efforts to draw a distinction between 'personal' rights or 'human' rights and 'property' rights produce mischief."

Yet complexities arise. Some land is held in common, owned by taxpayers and administered by the government; actions that originate on one plot of land often spill over to the property of others; and changing technologies require new interpretations of old laws. (When the bass frequencies from the subwoofers in your neighbor's Camaro cause your living room windows to rattle, is that trespassing?)

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