THIS LAND IS MY LAND : Property rights movement pits landowners, ecologists

In winning a U.S. Supreme Court victory this summer, South Carolina landowner David H. Lucas became one of the first folk heroes of the young but growing private property rights movement in the United States.

Around the country, property rights advocates fight what they see as illegal government confiscation of their land through overzealous regulation, particularly in the name of environmental protection.

In the Lucas case, private property activists scored one of their biggest victories to date.

Lucas had lost the right to build on two oceanfront lots he had bought for almost $1 million after the state of South Carolina passed a law to halt beach erosion. The state rejected his claim for compensation for the land and he appealed to the Supreme Court.

Lucas made his claim under the Fifth Amendment of the U.S. Constitution, which prohibits the “taking” of private property by the government without just compensation, whether by direct condemnation or, as Lucas asserted, by destroying the value or use of his property through regulation.

In late June, the justices ordered the South Carolina Supreme Court to rehear the case and to find in favor of Lucas unless the state can prove that the two homes Lucas planned to build (one for himself, another to sell) would be nuisances under pre-existing state law.

While most of the disputes fueling the private property rights crusade do not approach the monetary value of the Lucas land, many of its adherents identify with Lucas and his fight.

Aggrieved property owners attracted to the movement over the last couple of years also feel they have unfairly lost ground under laws intended to protect the country’s resources.

In fact, the issues that rile the property rights activists are an environmentalist’s wish list: wetlands preservation, endangered species protection, public park and greenway expansions, scenic river corridors, land use planning and zoning laws and growth management plans.

“Environmental protection laws as they are being enforced today are pushing people off their homes and their land,” said David Howard of Gloversville, N.Y., the chairman of Alliance for America, a recently formed property rights group.

Essentially, private property rights activists are challenging the validity of these laws, claiming they are land grabs. And, when they lose on ideological grounds, they want government compensation, arguing that society should pay for the public benefit wrung from their land.

Environmentalists, whom the property rights advocates typically call “environmental extremists,” claim that landowners are too narrowly focused on the pursuit of profits to recognize a wider societal duty to protect environmentally sensitive land.

John Echeverria, chief counsel for the National Audubon Society, said he recognizes that “landowners feel put upon by environmental regulations.”

“The nub of the issue is whether the government can regulate property to prevent a public harm without giving rise to a compensation claim,” he said. “I do not know that we can pay for every economic knock that people suffer.”

A more sympathetic view casts the property owners as the unfortunate casualties of a major societal upheaval as the country moves to correct past environmental wrongs and commits itself to a more ecologically sound future.

In the wetlands area, for example, there has been a “shift in attitude in one sector of society led by the environmentalists,” said American Planning Assn. official Jim Schwab. “Something that was once considered a swamp, a mosquito-infested terrible place and useless, is now viewed as something very positive and worth protecting.”

Jerold Kayden, who filed a friend-of-the-court brief in the Lucas case on behalf of the National Trust for Historic Preservation, agreed. “Society changes its values over time. . . . Whenever this happens, people get caught in the transition and not just a few, but a lot,” said Kayden, a senior fellow at the Lincoln Institute of Land Policy in Cambridge, Mass., which studies land use economics in the United States.

“The way the (environmental protection laws) are headed, people have gotten caught brusquely and rudely.”

Defining the private property rights movement depends on one’s perspective. To adherents, it is a grass-roots movement of small property owners who have banded together in the face of governmental edicts that make their land unmarketable or that forbid them to clear brush from where they live or put up a vacation or retirement home on land they have owned for years.

Critics claim the movement is a front for special interest groups, such as developers, farmers, loggers, miners and oil and gas ventures. These business people, according to critics, unfurl the property rights banner whenever their natural resource-dependent livelihoods are threatened or constrained.

Still others see political conservatives fomenting unrest. “It is not correct to characterize this as a grass-roots movement. (It is a) carefully thought-out strategy created by lawyers working for the Reagan and Bush Administrations,” the Audubon Society’s Echeverria said.

The movement, although ad hoc in many respects, has spawned at least three national organizations that claim to represent private property interests.

--The Environmental Conservation Organization, which goes by the initials ECO, was formed in 1990, is based in Chicago and represents 320 organizations with a combined membership of 7 million. The group was founded by the Land Improvement Contractors of America, whose members are companies involved in flood and erosion control projects.

--The Alliance for America was formed only recently and does not yet have a handle on how many members it represents, Chairman David Howard said. The group, Howard said, was started at least partially as an alternative to ECO, which some property rights activists fear is tainted by the commercial interests of Land Improvement Contractors.

The alliance grew out of an event last October when, in a show of strength, the movement organized a “Fly-In for Freedom,” which brought together an estimated 400 activists from 23 states to lobby Congress on the entire spectrum of property rights issues.

--Fairness to Land Owners Committee (FLOC) based in Cambridge, Md., was formed two years ago to fight wetlands designation of private property but quickly got caught up in the other property rights issues, according to founder Margaret Ann Reigle, who has testified on several occasions before congressional committees on property rights issues.

In addition, a number of statewide and local land owner groups have sprung up in the East, with particularly active organizations in Pennsylvania, Florida and Wisconsin.

Grass-roots organizations are less evident in California. Some observers say this is because the property rights movement started in the East and moved West, resulting in California’s relatively low profile.

Others, however, credit the western influences with giving rise to today’s grass-roots movement. The earliest organizers, said Robin Rivett, chief of the environmental law section for the Sacramento-based Pacific Legal Foundation, a conservative litigation group, cut their teeth on arguing over the use of the West’s abundant public lands.

The federal government, Rivett said, has tried to curtail contracted property rights on these lands, including mining claims, water rights, grazing leases and off-road vehicle use. Moreover, the federal government, he said, is constantly trying to capture more and more private property by claiming it for park land or wilderness areas.

Rivett did concede, however, that the movement has attracted fewer property owners in the West, other than a few organizations that have sprung up in Northern California’s timber communities to fight U.S. Forest Service reductions in timber harvest allowances in an effort to preserve the spotted owl.

“The states out East are much smaller and have been able to develop strong property rights coalitions that are quite vocal and exert a lot of pressure,” he said. “On the West Coast, we tend to organize around particular issues such as the spotted owl, rather than property rights in general.”

And in those cases, he added, groups like the California Cattlemen’s Assn., the California Farm Bureau and local chambers of commerce tend to lead the charge.

As the private property activists grow in numbers and political strength and win more judicial and legislative victories, some in the environmental movement admit they are worried.

The Alliance for America “fly-in,” for example, sufficiently alarmed the environmental forces that they issued a 34-page briefing package designed to counter the group’s anti-environmental message.

“We take very seriously those who want (to see) the demise of wetlands protection and other environmental laws,” said David Alberswerth, an official with the National Wildlife Federation.

“Clothing private property rights in with motherhood and apple pie is troublesome,” he said.

NEXT: The private property rights fighters declare their battlefields.