Landowners Drawing the Battle Lines

Intent on making a political statement, rural Pennsylvania landowners over the past four years have posted thousands of “No Trespassing” signs--but with a twist.

The signs warn that access is allowed only to hunters, hikers, bird watchers and others who seek out the owner and listen to a pitch condemning “government land use over-regulation,” according to Rhonda McAtee, executive director of the Pennsylvania Landowners Assn., which has distributed thousands of the signs.

The Pennsylvania countryside protest represents but one volley in a war raging between those who hold private property rights sacrosanct and those who believe a greater societal good is at stake in private land use decisions.

Most of the struggles embraced by the emerging private property rights movement pit largely rural landowners against environmental laws to preserve endangered species, protect wetlands and expand park lands.

Other skirmishes, typically fought on more urban battle fronts, confront such land use issues as historic preservation and growth management efforts.

Disputes over endangered species occur most frequently where urban growth threatens to spill over into otherwise natural settings, said Timothy Beatley, a professor in the architecture and urban planning department at the University of Virginia.

A federal law forbids property owners who discover an endangered species on their land from harming the animals or disturbing their habitat.

More species regarded as candidates for extinction as well as those already recognized as endangered and thus protected make their homes in California than in any other state. For example, of the 581 species currently listed as endangered in the United States, 72 are found somewhere in the state, according to a recent U.S. Fish and Wildlife Service report.

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California also has more preserves for federally recognized endangered species than anywhere else.

“Habitat conservation plans” completed or in progress include set-asides to protect the fringe-toed lizard in the Coachella Valley, the Stephens’ kangaroo rat in Riverside County, the San Joaquin kit fox and other species in Bakersfield, the Mission blue butterfly in the San Bruno Mountains and a bird called the “Least” Bell’s Vireo in the San Diego region.

Despite the drawbacks associated with habitat conservation plans--including the high costs, lengthy implementation times, narrow species focus and equity concerns, according to Beatley--some land owners find the federal law gives them little other choice.

Depending on the species at risk, the federal law may prevent an owner from clearing land of brush or even walking near a nest, let alone building on the property, said R. J. Smith, director of environmental studies for the Cato Institute in Washington, D.C., a Libertarian think tank, and a speaker in demand among private property rights groups.

The development industry is particularly alarmed. “We consider this a major fight . . . because (the law as it pertains to private property) is so categorical about not harming or touching habitat,” said Bart Doyle, general counsel for the Building Industry Assn. of Southern California.

The law is also criticized for ignoring the economic consequences to a community or individual of listing a species, but, said Beatley, the federal lawmakers decided such concerns could not dictate whether a species survives or not. “It is intended to draw a line in the sand,” he said.

Failing to weigh the human costs leave the legislation open to abuse by no-growth and anti-development interests, according to Troy Mader, an official with the recently formed Abundant Wildlife Society, a property rights group based in Gillette, Wyo.

The law, Mader said, “has become the most effective tool of nature worshipers to lock up vast areas and deprive people of their individual property rights.”

Beatley, however, hotly denies that the purpose of the law is anything but to “protect bio-diversity.” Using an analogy popular among environmentalists, Beatley explained that “when you allow the extinction of a species you allow a rivet on the planet Earth to pop.”

The more radical of the property rights activists are calling for the total repeal of the Endangered Species Act. Ron Arnold, executive vice president for the Bellevue, Wash.-based Center for the Defense of Free Enterprise, said elimination of the law is in keeping with his determination to “systematically destroy the environmental movement. It is not valid and it is toxic because the love of nature is polluted with a hatred of humans.”

Other property activists want to change the law’s approach by providing landowners with incentives to protect endangered species or making preservation efforts voluntary.

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Currently, Southern California home builders are most upset about a small songbird called the gnatcatcher, which nests and feeds in the coastal sage scrub found in undeveloped areas of Orange, Riverside and San Diego counties.

With the wheels already put in motion by the U.S. Fish and Wildlife Service to list the bird as an endangered species within a year, the administration of Gov. Pete Wilson is attempting a different preservation strategy in an attempt to overcome the inflexibility many landowners charge is inherent in the federal approach. The state is pushing for a “natural community conservation plan,” which would protect specific ecosystems instead of certain animals.

“It is an attempt to get ahead of the curve and not just get hung up on individual species and not lock land away,” said Doyle, whose organization supports the idea.

Besides the gnatcatcher, the broader state approach would also seek to preserve other species, such as the Orange-throated Whiptailed lizard and cactus wren, whose dwindling presence indicates the ecosystem as a whole is suffering.

The plan, Doyle said, works something like this: private property owners agree not to grade land that could fall within the protected area. In turn, local governments agree to hold off turning down development requests until the importance of the land under consideration is documented by the state, landowners will eventually get the option of buying into mitigation efforts to preserve critical habitat in exchange for disturbing their property.

Although property rights groups are turning up the heat on the federal endangered species issue because the law is up for congressional reauthorization this year, it is the wetlands controversy that has galvanized the political lobby over the past two years, movement leaders said.

The chief complaints center on the adoption three years ago of a new definition of wetlands by the federal government that critics charge is so broad as to include land that has artificially created wetlands or is dry much of the year.

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President Bush has since proposed a redefinition of wetlands to allow more development.

“Landowners have been abused over the years, but nothing was as Draconian and abusive as the 1989 wetlands manual. It typifies the private property issue and brought people out of the woodwork,” said Margaret Ann Reigle, head of the Fairness to Land Owners Committee, a Cambridge, Md.-based property rights group.

One controversial wetlands case involves the Leslie Salt mudflats along the San Francisco Bay. The company at one time produced salt by diverting sea water onto the property and letting the water evaporate.

In 1985, the Army Corps of Engineers declared the area a wetlands after the company decided to drain and plow the flats and brought suit, in which it sought to stop the company’s activities and win civil penalties.

The corps lost at the district court level, but won over the U.S. 9th Circuit Court of Appeals, which recognized a partial wetlands claim. The case is now back before the district court to make a determination, per the higher court’s instructions, as to which portion of the property the corps can validly regulate as wetlands.

The vernal pools dotting California’s landscape have stopped any number of developments because they are considered wetlands. Although they support plants and frogs in winter, they are dry and crusty in summer, property rights supporters said.

When land is designed as wetlands, property owners claim they are rarely offered government compensation, although they are forbidden to build on the land.

Jerold Kayden, a senior fellow with the Lincoln Institute of Land Policy in Cambridge, Mass., called the compensation argument “clever and bogus,” The government, he said, cannot afford to pay the many billions of dollars it would cost to buy development rights or purchase the land outright, yet it is within its authority under public nuisance law to regulate without compensation.

The property rights coalition also deplores what it sees as expansionary tendencies of the National Park Service and other government land agencies to perpetuate natural resources found on private land.

“The issue has received particular attention in the East because there is not as much park area there,” said Robin Rivett, an official with the Pacific Legal Foundation in Sacramento.

Nonetheless, he said, some members of Congress are trying to carve a significant wilderness area out of the Mojave Desert, while national parkland expansion in Alaska has been an issue for the last couple years.

Much of the park expansion debate, however, turns on the appropriateness of government efforts to buy out private owners, said Erich Veyhl, a Concord, Mass., software engineer. Veyhl became involved with property rights issues when he read a newspaper account of a National Park Service plan for a new park that would include his 43-acre retirement home stake, which partially fronts the Atlantic Ocean near the Canadian border of Maine.

“If something is not for sale, there is no such thing as a fair price for it,” he said.

NEXT: The incarcerated: innocent victims or environmental outlaws.