Environmental Law Endangers Property Rights; S. Cabrera

-JOHN ADAMS A ccording to Black's Law Dictionary, the term property "embraces every thing which is or may be the subject of ownership." It is the "unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it." By definition, the term does not just apply to lumber companies, builders, ranchers, and farmers. If you own a home or business, you are a property owner. If you own a car, stocks, bonds, or an IRA, you are a property owner. The Most Fundamental Right It is often overlooked (or perhaps ignored) that private property rights are included as civil rights guaranteed by the Uoited States Constitution. The Fifth Amendment de claresthat "no personshallbe ... deprived of life, liberty or property without due pro cess of law. . . ." That Amendment further states, "nor shall private property be taken Mr. Cabrera is the Director of Communications for the Pacific Legal Foundation in Sacramento, California.

for public use, without just compensation. " And in the Fourteenth Amendment, local officialsare forewarned, "nor shall any state deprive any person of life, liberty, or prop erty." Writing for the majority in last year's landmark ruling in Dolan v. City of Tigard, Chief Justice William Rehnquist of the U.S. Supreme Court stated that property rights are as important a part of the Bill of Rights as freedom of speech and religion or the protection against unreasonable searches and seizures: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation. " All other civil and political rights-the right of basic freedom, religious worship, free speech, the right to vote-are vitally dependent on the right to own private prop erty. "Let the people have property," said Noah Webster, "and they will have pow er-a power that will forever be exerted to prevent the restriction of the press, the abolition of trial by jury, or the abridgement of any other privilege."

Historyhas taughtpainfullywhathostility toward private property rightsaccom plishes. The social and economic travesty caused by over 70 years of Communist control of private property in the former Soviet Union is a lesson that should neither be forgotten nor repeated. But that lesson 489 490 THE FREEMAN • AUGUST 1995 has not been heeded by those writing and enforcing modern environmental laws. A Slow, Subtle Erosion Like rust eating away metal until it crum bles, the erosion of property rights is a very slow and subtle process that can take not just months, but years, even generations one instance, one case at a time. And nearly always, the erosion is not apparent. It is "behind the scenes" -not evident on the evening news or in the daily newspapers, but buried in thousands of pages of docu ments accumulated each year around the country in the corridors of government. Indeed, this country's fourth president, James Madison, stated in 1788: "I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

Ocie and Carey Mills (Florida) On May 15, 1989,58-year-old retiree Ocie Mills and his son Carey shocked the nation by becoming one of the first people to serve jail time for violating federal wetlands reg ulations. Their crime? Cleaning out a drain age ditch and putting clean sand on a parcel of land where Carey Mills planned to build a home. The Millses wanted to clean out the ditch to control mosquitos and to improve drainage. Although Ocie and Carey Mills had prior approval from the Florida Depart ment of Environmental Regulation (DER), the U.S. Army Corps of Engineers (Corps) arrested them for filling in a "wetland" without a permit. Believing the charges to be totally un founded, Ocie did not hire an attorney, but defended himself and his son. "The charges were so incredibly trivial," he said, "I did not take them seriously and certainly didn't think that we could be in jeopardy of going to prison."

During their trial in Federal District Court, the judge refused to allow Ocie to present evidence confirming that the Millses' maintenance of the drainage ditch was allowed under Florida law and that DER officials authorized the placement of sand on his property. The judge also refused to allow DER employees to give their opin ion that the property was not a wetland as defined by the Corps' regulations. Ulti mately, the two men were each sentenced to 21 months in federal prison camp, were denied eligibility for parole, were each fined $5,000, and subsequently were ordered to restore the affected site within 90 days of their release. After serving their time, the Millses were home with their family the day before Thanksgiving, 1990. But their ordeal would not be over. In March 1991, federal officials hauled the Millses back into court on charges that they failed to comply with the probation order to restore the property.

After personally examining the property, U.S. District Judge Roger Vinson sided with the Millses and ruled that the "defendants have substantially complied with the site restoration plan." In his ruling he noted that the Corps' mandated "restoration" had left the lots "totally denuded and ugly" and that further "restoration" as required by the Corps would destroy the property's value. In the spring of 1992, the Millses went back to the U.S. District Court to erase their convictions. But constrained by the present state of the law, the reluctant and sympa thetic judge upheld their convictions. In his March 1993 ruling, Judge Vinson expressed astonishment of how the federal Clean Wa ter Act had been interpreted in a manner "worthy of Alice in Wonderland" in which ,'a landowner who places clean fill dirt on ... dry land may be imprisoned for ... discharging pollutants into the navigable waters of the United States. " The Eleventh Circuit Court of Appeals in Atlanta upheld their convictions on October 27, 1994; on May 15, 1995, the U.S. Supreme Court turned down their request for review.

Tom and Doris Dodd (Oregon) In the January 1992issue of The Free man, I told the story of the Dodds (' 'Dream House Turns into Nightmare"). In 1983, Tom and ENVIRONMENTAL LAW ENDANGERS PROPERTY RIGHTS 491 his wife, Doris, had put $33,000of their life's savings into a40-acre, scenic parcel in Hood. River County, Oregon, overlooking beauti ful Mt. Hood. A major factor in their deci sion to buy the lot was the prior assurances they received from local officialsthat build ing a home there was permitted. But a short time later, the zoning was changed. Under the new rules, they can use their property only for growing and harvesting lumber. A house is permitted only if absolutely neces sary to accommodate a full-time forester on the property. Twenty-two acres of the property are covered by a type of soil that will not support forest vegetation. The combined value of the land as now zoned and the estimated proceeds from harvesting the few merchantable trees from the forested area would be less than $700! Moreover, accord ing to a forest expert, harvesting trees on the parcel would damage watershed yields, wildlife habitat, aesthetic qualities, and the protection to neighboring properties from wind.

As retirees, the Dodds have no desire to engage in the forestry business, and they certainly do not wish to be forced into a losing business venture. And so the ines capable conclusion is that unless Tom and Doris are allowed to build their house, their property is useless to them. After exhaust ing every possible administrative avenue and failing in the Oregon court system, the Dodds have now taken their fight into the federal court system. A ruling from the Ninth Circuit Court of Appeals is expected this year. Lois Jemtegaard (Washington) Mrs. Jemtegaard of Skamania County, WasQington, owns a vacant 20-acre parcel that the county zoned for a single-family home. She would like to sell the parcel as a buildable lot so she would have money to repair her home, located on another parcel, that she says "is literally falling down around my ears. " The proceeds would also help supplement the widow's retirement income.

The problem is that the parcel she wants to sell is considered to be a "resource" and "scenic" land under the Columbia River Gorge National Scenic Area Act. Under that federal law, the parcel may be used only for agriculture or timber operations. How ever, the property is not presently suitable for either of those uses. Although Mrs. Jemtegaard holds formal title to the property, for all practical pur poses she has lost any realistic use of it. Moreover, she has not received a nickel of compensation for the "taking" of her land for public benefit. Her parcel has lost its economic value as a buildable lot so long as the Columbia River Gorge Commission's decision disallowing a home remains in effect. Hope Through Involvement These instances of environmental regula tion gone amok in America represent only the tip of an ugly iceberg whose body is submerged and invisible to most of us. Many more" silent encroachments" can be found in the legal filesof Pacific Legal Foundation, a nonprofit organization defending in court the property rights of the Millses, the Dodds, Mrs. Jemtegaard, and others like them.

We are witnessing a gradual decay in the basic principle that government is supposed to protect private property-not to take it away, not to impede reasonable use and enjoyment of it, and not to destroy its economic value through overregulation. It is critically important that citizens stay in formed and communicate their concerns to their elected representatives about pro posed or existing policies that are harmful to private property rights. Environmental laws are too often churned out with little or no regard for their costs or their consequences to human life, private property rights, and the free enterprise sys tem. Under the federal Endangered Species Act, vast areas of land suitable for housing or other beneficial uses are being closed off to development, because of findings that the land is a current or potential habitat of 492 THE FREEMAN • AUGUST 1995 some endangered or threatened animal, fish, or plant. Appalling as it may seem, the social, economic, or environmental benefits of proposed projects are deemed irrelevant by federal regulators who decide if a species should be protected. Human existence is simply disregarded in efforts to save certain species.

The Delhi Sands Flower-Loving Fly, whose lifespan is about 10 days, enjoys the same protected status as the American bald eagle, grizzly bear, and California condor. Swat this little creature and you could face a year injail and up to $200,000in fines! This obscure insect, which inhabits 700 scattered acres in San Bernardino County, California, now threatens to hinder needed economic development in the area. The detrimental effect of this kind of overzealous regulation is aptly illustrated in the following abstract of a report entitled, "Impacts of Mitigation for the Endangered Delhi Sands Flower Loving Fly on the San Bernardino County Medical Center": The Endangered Species Act as applied to the construction of the San Bernardino County Medical Center resulted in an expenditure of $3,310,199to mitigate for the presence of eight Delhi Sands Flower-Loving Flies. The effort as negotiated with the U.S. Fish and Wildlife Service and California Department of Fish and Game resulted in moving and redesigning the facility to provide 1.92 acres of protected habitat for eight flies believed to occupy the site. The effort mitigates only for species on site. Cost per fly amounted to $413,774.25and resulted in a one year construction delay. This cost is equivalent to the average cost of treat ment of 494 inpatients or 23,644 outpatients.

When fires swept Southern California last October, the rural Winchester area of south Riverside County was hit particularly hard. Over 25,000 acres were charred and 29 homes destroyed. Many burned-out families in that area believe they could have saved their homes if only government officials had given them permission to create firebreaks around them. Brush fires can be kept away from homes by clearing out a strip of veg etation-a process called disking. Many of the victims of the Winchester fire have disked their property for years. But a few years ago officials from the U.S. Fish and Wildlife Service dissuaded them because doing so would disturb the burrows of the Stephens Kangaroo Rat, a rodent put on the federal endangered species list in 1988. The Endangered Species Act either bans or strictly limits development on most of the 77,000acres designated as "rat study" areas in Riverside County. Yshmael Garcia, a rancher who lost his home in the blaze, was quoted in the Los Angeles Times: "My home was destroyed by a bunch of bureau crats in suits and so-called environmental ists who say animals are more important than people. I'm now homeless, and it all began with a little rat."

Private Property Rights Advocacy There is no shortage in this country of organizations dedicated to representing the interests of various species of animals or plants. Unfortunately, in courtroom battles involving land use and environmental pro tection, the interests of mainstream Amer icans are typically under-represented. Every intrusive land-use or environmen tal regulation that is upheld in court results in the creation of a legal principle that acts like a building block upon which another antiproperty legal principle can be erected in yet another case. Years of bad precedent inevitably will result in a frail social and economic fabric that will not hold up to the wear of tyranny. That is why Americans must begin to stop the legal erosion of property rights, and restore this bulwark of our personal liberties. D THEFREEMAN IDEASON LIBERTY The Environmental Assault on Mobility by John Semmens I recently had the opportunity to attend a Federal Highway Administration work shop on air-quality analysis. This session was designed to train government bureau crats to operate computer models for as sessing a region's compliance with federal air pollution regulations. The experience was most enlightening.