Takings: The New Politics, A Speech by carl Pope

Carl Pope is the Executive Director of the Sierra Club. This speech was presented to the Commonwealth Club, San Francisco, California, June 31, 1995, and was broadcast on National Public Radio.

The New Politics

By Carl Pope

We have a new politics. 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.

If I buy a sack of tomatoes, I own them. I can take them home and cook them. I can chop them up for a salad. I can let them attract fruit flies on my counter. Letting them rot is wasteful. My friends, my children, and my church may urge on me that I should put them to good use. But I doubt that anyone here would propose a law telling me that I must eat them, or that I may not.

In America, land has never been a sack of tomatoes. No American court has ever ruled that a landowner could do anything he wanted with his land. No one in America has ever received a real estate title bearing that promise.

But now we have a new politics. This politics speaks of property rights, but it means by property rights something radical, not something conservative. It means by property rights something new, not something traditional. It means the end of both human and natural communities. 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.

Land is real estate. Real, in this case, does not mean solid. It means royal; land came from the king. In England, kings gave out lands to their feudal retainers. In the 13 colonies, land was held by virtue of royal charters. In the new states, the federal government either purchased or conquered new lands, and then sold or gave it away to settlers. This culminated in the Homestead Act. It remains in force only in the vestigial if extremely profitable form of the Mining Law of 1872.

When the kings, or the federal government, conveyed land to settlers, they also conveyed restrictions. Until the adoption of the Constitution, land could be taken for public purpose without compensation. Indeed, until after the Civil War, many states retained the right to do, and even once the 5th and 14th Amendments established the right of compensation when land is actually taken, land carried with it numerous restrictions. Land was, and always has been, infused with a public trust. Kings and Congress, when they awarded ownership of land, retained the right to protect the surrounding community by regulating the use of that land in the public interest.

What restricted a landowner? Among other things, he owned the land, though not the wildlife on the land, which was the king's, or the public's. Nor does he own either surrounding public land or the right of access to such land. He couldn't deny the public access to tidelands, which were publicly owned, or to the beds of rivers or the shore of lakes. He couldn't impede navigation. His right to utilize the surface and underground water flowing over and under his property were subject to elaborate, highly variable, and changeable, state doctrines of water rights. His right to develop the land was subject to zoning and land-use planning. His use of land could not constitute a nuisance for his neighbors, and was subject to a wide range of restrictions by the state and local governments -- indeed, the only right he clearly and unequivocally enjoyed was the right to occupy his property and to keep others from occupying it -- so long as it did not impinge on access to waterways, traditional rights of way, trails and roads, wetlands and beaches, and on and on.

In recent years, the courts have clarified two related issues. One is that if government regulation so limits use of land as to deny the owner of any economic use, this constitutes a taking and must be compensated. The other is that if an owner makes an investment in his land with reasonable assurance from government that he will be allowed to utilize the investment in a particular way, and government then denies him the right to complete or carry out the project, he may have lost a "reasonable investment based expectation" and may be entitled to compensation. Different state constitutions and courts allowed greater or more limited rights to property owners. In California, access to the beaches is guaranteed by the State Constitution -- in Connecticut it is not. In California, the existence of zoning for a use does not create an investment based expectation, so government may down-zone without compensating. In Virginia, it may not.

However, no state has historically treated land like a sack of tomatoes. Kings, Congress and states have all understood that the public was not well served by making each property owner a sovereign; that the public welfare required the protection of the public trust. No state, indeed, has allowed all of its land to enter private ownership. Government, state and federal, has retained ownership of land where the public trust values seemed to be higher than the benefits of private ownership. Land is owned for highway rights of way, for schools and post offices -- but also to ensure open space, and preserve scenic corridors, to provide parks and recreation areas, to preserve wildlife habitat and watersheds, to guarantee forests for future generations and to allow the military ample room to train its troops and test its weapons. Government owns land to provide sites for publicly owned housing, and maintenance yards for public transit systems.

Government owns land, and restricts the use of privately owned land, for a simple reason. Land is the skeleton, and the circulatory system of a community. It is the blood and bones of our society. Land lies next to other land. Its use, or abuse, effects everyone. My back yard is the view out your window. The traffic that flows to the shopping center clogs the streets of its neighbors. If I destroy a bald eagle nesting site on my wood lot, I am destroying everyone's eagles. If I erect a fast food restaurant next to your house, your property values go down. The music from my late night cabaret does not stop at your bedroom window. That is law. It is common sense. It is the American tradition.

Now it faces a fundamental challenge. Five states -- Washington, Florida, Texas, Mississippi and Louisiana -- have now enacted "takings" bills which relieve landowners of the obligation to respect the public trust. Virtually every state, including California, faces such legislative proposals. The leading Republican candidate for President, Senator Robert Dole, has introduced legislation to nullify the authority of the federal government to act to preserve the public trust. Some members of Congress even call for the disposal of all public lands, even the National Park System. They say the federal government has no right to own or limit the use of land.

This movement would vest in landowners' rights worth trillions of dollars -- rights they do not own -- rights they never paid for. It would force the general public to buy them back if we wished to ensure that blight does not invade our neighborhoods; development wall off our beaches; filled wetlands flood our streets; or clearcutting clog our streams and eliminate our wildlife. This new politics is not concerned about logic, tradition, or common sense. Let us look at some of its contradictions.

Under this radical takings doctrine, if two of us own parcels across a creek, and every winter the creek rises and floods half of our yards, I have a right to fill my parcel so that all of yours floods next winter. This is my right, and you have no right to prevent me. But if you go the county Board of Supervisors, and ask them to enact a wetlands ordinance, one that prevents me from filling all of my yard, in order to protect half of yours, I have suffered a taking, and must be compensated. Under their rules, government would have to pay to the regulated far more than the regulations cost.

Imagine that there is a market for a fast food restaurant on my block but zoning regulations do not permit it. Imagine under these proposals that I am denied my right to build a drive through burger joint on my property outside your living room and that the franchiser would have paid me $50,000 to build it. I am turned down and then am able to collect $50,000 in compensation from the county. The franchiser then offers his proposal to the couple across the street. The city rejects their variance as well. The taxpayers fork up another $50,000.

You see the logic. The same "loss" can be suffered time and time again although the market would have supported only one such drive through window. The only end to this hemorrhage of public dollars? Build one neon restaurant on every block with the profits flowing to the greediest neighbor or the one who most dislikes his neighbors.

The property rights radicals would dispose of our national parks because government owns too much land already. But they would require government to purchase any land which was infused with the public trust, any land which served the needs of community. Because that is a public good which must be purchased by the public -- even if the same public has never sold this public trust in the first place.

Let us look at some other property rights which the new politics has found to defend. The League of Private Property Owners, headquartered in Battleground, Washington, the Center of the new politics, published a Congressional voting Chart for 1993-1994. Here are direct quotes about some of the legislation that they identified as protecting or threatening private property rights:

None of these votes relates to government regulation of land owned by private individuals -- all relate to the special rights of private individuals to access to public resources and publicly owned lands by virtue of their status as landowners or commodity exploiters.

The takings movement has also argued that landowners on Fire Island, New York, have a property right to subsidized federal flood insurance because such insurance increases the value of their property.

But while the advocates of the new politics find property rights almost everywhere (particularly on public land), they simultaneously assert that private property and community collide only rarely. Recently, the Supreme Court ruled that the Endangered Species Act protects a bald eagle's nest before the egg is laid as well as after it hatches. Habitat is protected, said the Justices. There were three dissenters, who lamented that under the decision property could be "conscripted for a national zoological purpose."

Implicit in the dissent in the entire rhythm of this new politics is the idea that most land serves private purposes only, that only an occasional landowner is called upon to redeem the public trust, and that this summons thus constitutes an arbitrary and unjust appropriation. This might have been true when several million Native Americans lived upon this continent as hunter gatherers limited by numbers and technique, unable to go beyond the early extinction of the mammoth and saber tooth, to destroy the land itself. But 300 million Americans driving Ford Broncos eating at McDonalds and aspiring to a modest approximation of O. J. Simpson's house, must pay the price of their wealth and their numbers. They cannot live as unconstrained as frontier Americans. Power has its price, affluence its responsibilities. We cannot live alone. We are part of communities even if we do not much like them.

And land is the blood and bone of community. In different ways every owner must expect restrictions if that blood and bone is not to be severed and drained and splintered way. Every parcel is imbued with some part of the public trust. Every land owner must at some moment acknowledge that no man, and no lot, is an island.

At this moment you may wonder whether I exaggerate. Is this new politics real? Is it serious? Does it sit upon the tattered edges of our society or in the seats of power?

Here are some quotations:

According to the Floridians for Property Rights, "When a person owns property, he or she has a piece of `sovereignty' because he or she controls that property. Just as the freedom of speech prevents government from dictating what can be said, freedom to own property prevents government from dictating what can be done with property, with the important exception of `compensated' interference for the public good. Without the requirement of compensation, there would be no true property rights."

This new politics does not come from the Constitution or our legal traditions. Let me quote from the Supreme Court decision in the Lucas Case, written by Justice Scalia and signed by Justice Rehnquist, the two most conservative members of the Court. "The property owner necessarily expects the use of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers.... Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law..."

The new politics does not come from the traditions of either of our political parties. While many of the advocates of radical property rights are Republicans, this new politics is profoundly hostile to the very concept of the res publica, the public realm. While many advocates of this new politics are Democrats, it is profoundly hostile to democracy itself, which rests on the concept that "We the people ... provide for the common welfare." There is no republic, and no common welfare, in this vision. Only the sovereign landowner, on his sovereign parcel.

If it does not come from the Constitution or the courts, from the traditional values of the Republican or Democratic parties, where does this radical vision of property as a sack of tomatoes come? From the frontier. What was the cry of Daniel Boone? Elbow room. Land enough that it could be used without worrying about the neighbors. Because it had no neighbors. Not land as the blood and bones of a community, but land to escape from community. Land to exploit and then to move on. Elbow room. Government ownership of land was rejected by frontiersmen who saw no community, no owners, and who to establish that vision decided that the native Americans who had stewarded the land before them were not human. Government regulation of land in the interest of community was rejected for the same reason. Treaties with the Indians were violated at the point of a gun. Land, to a frontiersman, was a commodity, a source of food, a sack of tomatoes, and a passport out of society.

It is not accidental that the property rights movement overlaps so heavily with the members of the militia and other advocates of establishing public order on the basis of an armed populace, with justice flowing to the fastest draw, and Dodge City, next year's winner of the All American City award. Self-defense as the basis for law and order; land as a commodity to be used up; neighbors as a blight to be escaped; this was the frontier promise. It is now offered to us as a nightmare, and as the basis for our new politics.

But we can awaken from this nightmare. We can. If we wake up from the politics of indifference and cynicism; if we pay attention to what those who govern us do as well as what they proclaim, if we do not turn the dial from the democratic debate to the O. J. Simpson trial, if we commit ourselves to the values of the Republic, as well as of the shopping mall.

When we talk of values, we should listen to Aldo Leopold's raspy, conservative Midwestern voice, speaking to us from the Sand Country of Wisconsin: "All ethics so far evolved rest upon a single premise: that the individual is a member of a community of interdependent parts. His instincts prompt him to compete for his place in the community, but his ethics prompt him also to cooperate (perhaps in order that there may be a place to compete for). The land ethic simply enlarges the boundary of the community to include soils, water, plants and animals, or collectively, the land. A land ethic changes the role of Homo sapiens from a conqueror of the land community to plain member and citizen of it. It implies respect for his fellow members, and also respect for the community as such."

As we look out at both our human and our natural communities, and as we listen to the voices of a new politics which would destroy both, we may finally be ready to recognize the truth that Leopold preached: We cannot maintain human communities without respect for natural ones.

Carl Pope <carl.pope@sierraclub.org>

Sierra Club, 730 Polk St., San Francisco, CA 94109, USA.
Telephone +1-415-776-2211 (voice), +1-415-776-0350 (FAX).