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ISSUE BRIEF: Protect Private Property Rights

Private Property is a fundamental right

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The Issue:

Private ownership of property is a fundamental right in America. Along with that ownership comes a certain expectation that landowners will be able to legally use their land as they see fit, so long as others are not harmed by that use. Over the years, that expectation has eroded as federal, state and local governments have passed laws that impact how a landowner uses his/her land. Furthermore, governments have been obtaining property through eminent domain to use for various purposes including roads, parks, open space and conservation areas and other activities. 

In the United States, the "taking" of private property is prohibited by the Constitution. However, actually getting relief under the Fifth Amendment has been hard for property owners to achieve. Determining what constitutes a taking and the appropriate remedies when it occurs have proven problematic for the Courts. Recent Supreme Court actions have been particularly alarming, as the Court has seemingly embraced an expansive view of governments’ rights to invoke eminent domain to seize private property for other purposes.

Also sobering is the fact that the total amount of private land in America is shrinking each year. According the General Services Administration, the federal government already owns roughly 670 million acres of land throughout the United States. This represents nearly 1/3 of the entire U.S. and is an area more than six times the size of California. Over the past ten years, federal land acquisition funding has averaged over $300 million annually. Over the last 40 years, the federal government has spent nearly $13 billion to acquire hundreds of thousands of acres of land. Since John F. Kennedy was President, an area larger than the size of Florida has been added to the federal estate. State and local governments also continue to acquire private lands thereby increasing the amount of publicly-owned land.

Every new acre of government land decreases the pool of private property across the country. In addition to shrinking private property rights, the creeping spread of publicly-owned land also reduces economic productivity on the land and results in a significant loss of tax revenues that would otherwise have been available were the land to remain in private ownership. 

Impacts on the West:

Recent years have seen an erosion of the concept of “private property ownership” under the U.S. Constitution. The practical effect of the taking of privately owned property through over-regulation or acquisition has been a reduction in the economic productivity from that land and a lessening of the tax revenues necessary to support local communities and states. 

Further, retaining vast amounts of land in federal ownership has led to a wide range of negative consequences. These include: the chronic lack of federal funding to adequately and responsibly manage these lands (a recent report estimates the maintenance backlog of existing federal lands exceeds $15 billion dollars); the resulting negative impacts on neighboring non-federal lands from insect pests, noxious weeds, wildfire and other problems; and, most importantly, the impact on the tax base and economies of rural Western counties. At the same time, limited conservation funds are being used to acquire new lands while many of the roads, campgrounds, and other basic facilities on our existing federal lands are crumbling and not being repaired.

Status of the Issue:

Eminent Domain -- In June of 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that local governments may seize private property to be turned over for private development. The Court’s 5-4 decision allows local governments to use eminent domain to seize property for redevelopment, even if that development primarily benefits a private company. Estimates from the Institute of Justice are that, within six months of the Kelo decision, at least 5,783 homes, businesses, churches and other properties were threatened or condemned nationwide.

Since the Kelo decision, 34 states have passed legislation curbing the abuse of eminent domain. In addition, ten of 12 ballot initiatives that would restrict eminent domain abuse passed across the country in the 2006 election cycle. Although many states have already acted, Congress still must play a pivotal role in reforming the use and abuse of eminent domain.

Federal Land Acquisitions -- Over the past decade, a number of attempts have been made in Congress to significantly increase funding for new federal land acquisition. In the late 1990’s, the most dramatic of these proposals was entitled the Conservation and Reinvestment Act (CARA). CARA would have guaranteed $3.1 billion annually for 15 years to state, federal and local conservation programs such as wildlife restoration, parks and outdoor recreation, coastal conservation, and historic preservation. This proposal came close to passage during the 108th Congress when federal coffers were in surplus. However, when the surplus turned to deficits, support for the bill subsided. Since then, a number of scaled-down versions of the bill have been floated.

Federal Land Sales -- Last Congress a number of bills were introduced that would have moved us towards a more rational federal land policy. For example, Rep. Chris Cannon (UT) introduced H.R. 1370, the “Federal Land Asset Inventory Reform Act,” to identify existing federal lands. Meanwhile Rep. Jeff Flake (AZ) and Sen. Craig Thomas (WY) introduced the “No Net Loss of Private Land Act” (H.R. 1235/S. 591), that would have limited additional federal land acquisitions. Neither bills made to the floor for a vote during the 109th Congress.

The Bush Administration has floated the idea of amending the BLM’s land sale authority under the Federal Land Transaction Facilitation Act. This proposal would update the public lands available for disposal under FLTFA and change the distribution of the proceeds of those sales. Under the current Act, BLM is limited to selling lands that had been identified for disposal in land use plans in effect prior to the enactment of FLTFA and makes the proceeds available for the acquisition of other non-Federal lands within specially designated areas such as national parks, refuges, and monuments. The new proposal would allow BLM to use updated management plans to identify areas suitable for disposal; allow a portion of the receipts to be used by BLM for restoration projects; and return 70 percent of the net proceeds from these sales to the Federal Treasury. This proposal is estimated to generate an additional $193 million in revenues over the five-year period 2008 through 2012.

Similarly, the President’s recently released 2008 Budget proposal also recommends selling a limited number of acres of National Forest lands around the nation. The proposal directs that 50% of land sale receipts (estimated at $800 million) to remain within the state they were collected, to be used for the acquisition of land and access for the NFS system, conservation education, and wildlife and fish habitat restoration. The other revenues generated from these sales would be used for a four-year reauthorization of the Secure Rural Schools and Community Self Determination Act, a 2000 law designed to compensate states and counties for the dramatic decline in timber sales on federal lands in recent years.

While numerous bills have been proposed that would expand government ownership of land, only one major pro-property rights bill has been introduced thus far in the 110th Congress:

 S. 48, the “Private Property Rights Protection Act”, introduced by Senator John Ensign (NV), would withhold all federal economic development funds from states and localities that engage in such abusive practices, thereby sending a clear message to governments that taxpayer funds should not justifiably be used to undermine property rights.

Solutions:

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