ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, May 5, 1996 TAG: 9605040006
SECTION: EDITORIAL PAGE: 3 EDITION: METRO
SOURCE: ROBERT M. SHAFFER
AN INCREASING number of farmers, wood-lot owners and other small-business people across the country are losing rights to their land, as the federal government imposes unprecedented restrictions on landowners' legitimate uses of their land. Life savings are swept aside simply because their land is classified as "wetlands" or the home of an endangered species, giving government the right to excessively restrict property use without any compensation.
Many landowners are discovering their private property rights are being dramatically reduced, even though such rights are protected under the Fifth Amendment to the U. S. Constitution, which forbids government from taking private property for public use without just compensation. Public outcry against this unfairness has motivated Congress to consider legislation to restore fairness and equity.
Everybody has a right to own property. Citizens also recognize there are responsibilities associated with ownership. For example, land cannot be used in a manner that damages a neighbor's property. Likewise, the government has a right to take private property for a public project, such as a bridge or highway, under the doctrine of eminent domain. But in these cases property owners are justly compensated for their loss.
However, restrictions on the use of private lands under laws such as the Endangered Species Act and the wetlands provisions of the Clean Water Act are onerous, because they fly in the face of constitutional protections. There is no compensation to landowners for a loss of property value due to excessive restrictions on use.
These "takings" hurt the people least able to afford financial loss - small landowners, especially those who own the overwhelming majority of the country's timberland. There are 9 million nonindustrial private landowners who own 59 percent, or 288 million acres, of the total timberland in the United States. Most of these forest landowners have holdings of less than 100 acres.
In Virginia, owners of small, private, nonindustrial forest land account for an even greater share of the timberland, owning 77 percent of the commonwealth's 15.4 million acres.
Financial loss is only part of the problem. Landowners must go to court to challenge government "takings," footing the bill for lawyer's fees, and enduring many years of legal proceedings. Moreover, since opinions among the courts tend to be inconsistent, the results are unpredictable.
Fortunately, the U.S. Senate is considering a bill, the Omnibus Property Rights Act of 1995, that balances property-owners' rights with government responsibilities, and creates a framework for the parties to address their differences.
Landowners would have the right to be compensated if the affected property's fair market value is reduced by one third or more. Each party can settle a dispute over property values through arbitration. Landowners would still be free to take their case to federal court.
The proposed legislation also sets rules checking the government's access to private property, requiring government to carry out impact studies before regulations or policies are written and implemented. Its intent is to get federal regulatory agencies to engage in more cooperative efforts with landowners.
Some organizations want things left as is, claiming that the bill would impede government efforts to carry out its environmental mandate. To the contrary, compensating landowners has nothing to do with the spirit or intent of environmental laws.
The overwhelming majority of Americans, especially farmers and timberland landowners, support environmental goals. What's more, landowners are not conspirators trying to block government. They simply want to be compensated for their losses. Looking at it this way, compensation is a logical and rational step to help government carry out its mandate.
Opponents also point to the high potential costs involved in compensating landowners. Their real objection, however, seems to be any restraint on the expanding power and size of federal agencies, something President Clinton has spoken out against in recent months.
One provision of the proposed law recognizes the president's concerns, requiring agencies to select the regulatory alternatives that minimize the taking of private property.
That such common sense has to be codified into law speaks volumes about the seriousness of the "takings" issue, and the concerns about an ever-growing bureaucracy.
There is more at stake here than a system of redress. The government needs to guarantee that the constitutional rights associated with private property are protected. Restoring fairness and equity sends a signal of cooperation and trust that's needed to protect the nation's resources. This fairness and equity builds a stronger foundation for respect of environmental goals, which is compatible with the goals of landowners and environmentalists alike.
Robert M. Shaffer of Dublin is president of the Virginia Forestry Association.
LENGTH: Medium: 92 lines ILLUSTRATION: GRAPHIC: JOHN MacDONALD/Los Angeles Times Syndicateby CNB