Executive Summary
Private property and private property rights must be respected and the owners must be given just compensation if their property if taken for public uses or purposes. However, private property owners must respect the rights of others and the general public when advancing their own self interests. Authorized private uses of public lands, i.e., livestock grazing, is a privilege and not a private property right and therefor not subject to compensation should such use be curtailed or terminated by BLM
Issue
The protection of private property against the encroachment by government laws and regulations is a major issue before Congress and in many of the States, particularly in the West. There have been numerous attempts at both the national level and in more than half of the States to pass legislation that would require government agencies to conduct elaborate reviews of proposed regulations to make sure that government actions do not result in the taking of private property without compensation, as provided by the Fifth Amendment to the US Constitution.
Proponents of takings legislation argue that it is necessary to protect private property and private property rights against encroachment by the proliferation of laws and government regulations that stem from public concerns for protection of the environment and the needs of an increasingly complex society.
Opponents argue that takings legislation will be costly for the government and will undermine laws and regulations that are designed to protect the environment, worker safety and public health. In some cases actions by private land owners may jeopardize the best interests of the public.
The issue has major implications for the ability of the government to control and manage the public lands.
Background
The Fifth Amendment to the Constitution of the United States provides that private property shall not be taken for public use without compensation. Traditionally this has meant that the government must pay a fair price to the owner of lands that the government takes for public projects and programs like roads, reservoirs and wartime emergencies. In recent years, however, there have been a growing number of Federal, State and local governmental laws and regulations that have significantly restricted the use and/or reduced the value of private lands and property rights even though the government does not take title to the lands. The Endangered Species Act, for example, requires that measures to protect designated species apply to both public and private lands. Usually this means that development is either precluded or severely restricted. Government regulations like those in Rangeland Reform '94, that are designed to protect the resources on the public land could have a significant impact on how the private lands of western ranches can be used. Clean air and clean water laws and regulations may impose major constraints on private land uses and development. In the public land areas of the West, this increasing government regulation of natural resource uses on the public lands has led to the polarization of user and environmental groups.
The private uses on public lands and on the intermingled private lands that are so important to the economy of the rural West have been fostered by 150 years of Federal settlement and development laws and policies for the western public lands. As federal land policies evolved toward retention and management, the ranching, the mining and logging industries were able to adapt to the multiple use management policies expressed in the Federal Land Policy and Management Act and similar statutes because their activities were recognized as legitimate uses of the public lands.
The backlash of opposition in these increasing government regulations is reflected in the growth of the "wise use" movement in the West; the call by several western States and many counties for State or local control of the public lands and the private property rights or takings legislation being proposed in Congress and in over half of the States. While few takings statues have been enacted to date, the issue is a valid concern for public land user and interest groups and the public land managers.
The private property rights issue has much the same type of emotional appeal to the public as does environmental protection. The issue will probably not go away until environmental protection laws and regulations are designed and implemented with greater consideration for the valid concerns of the people, the communities and the local economies that are dependent upon the public lands.
Congressional and state legislatures can pass private property protection and takings statutes that will make it more costly, complicated and difficult for government to regulate activities on public and private lands, but the courts will ultimately determine the taking issues. Some courts have already ruled that compensation is due when the value of a parcel of land is only partially diminished by a government action. Of particular importance to public land managers is the fact that the courts have ruled that grazing on the public lands is a privilege granted by the government, not a right owned by the lessee.
Public Lands Foundation Position
The lands managed by the BLM are publicly owned and must not be appropriated by private interests. Such long standing uses of the public lands as livestock grazing, timber harvest, prospecting and outdoor recreational activities are legitimate activities on the public lands that are important to the economies and well being of the people and communities that are dependent on the public lands. These uses are privileges that are subject to modification by the BLM to protect the resources or to meet the needs of a growing and increasingly complex society. These uses are not private property rights that require compensation if curtailed or terminated, but implementation of changes should be done in ways that take into consideration the impact on the users.
Private property and private property rights must be respected and the owners must be given just compensation if their property is taken for public uses or purposes. However, private property owners should not be allowed to use their property to advance their own self-interest without regard to the rights of others and the general public. Just as local government zoning ordinances place some limits on private land uses within city limits, federal government regulations may place some limits on private land uses in areas that are predominately federally owned.
The PLF therefore advocates that:
1. Private property rights and takings legislation is unnecessary and will create costly burdens for government and more controversy in public land management.
2. Instead of creating more regulatory controls for the public land management process, stronger emphasis should be placed on applying the multiple use management objectives of FLPMA in the management of ecosystems that is now being implemented by the BLM.
3. There should be modification of existing laws like the Mining Law and ESA which gives special rights or protection privileges to specific resources or resource users over other resources of public land.
4. New land management initiatives should provide for greater mitigation of their impacts on the long standing private uses and activities on the public lands that are so important to the people, communities and local economies that are dependent on the public lands.