Road to Property Rights Is Often Full of Bumps : Timber: No state has approved a broad formula for compensating landowners for seized land. In Mississippi a landowner must be compensated if acreage is devalued by 40% or more by forestry regulations.

When you bought those 40 woodland acres, it was an investment. Years from now, when your child’s college tuition came due, you could cut and sell the timber for profit.

But then the government, citing environmental concerns, says you can’t. And the value of your land falls faster than a teetering redwood.

Does the government owe you compensation?

Yes, says a burgeoning property rights movement. In the courts and in the legislatures, it is seeking to underscore and augment the Fifth Amendment to the Constitution, which says private property shall not “be taken for public use without just compensation.”

The property rights movement argues that “taking” property need not mean taking possession of it--that by regulations, the government takes away control of property and the value of it, and should pay. A recent Supreme Court decision has given the movement added impetus.

Property rights is an issue that is as old as this country. But the current movement dates to the mid-1980s; it was inspired by an ever-increasing number of environmental regulations.

“We’ve gone to being the most regulated society in history, and we’re starting to see the effects of it,” said David Alnasi of the Washington-based Defenders of Property Rights. “People are tired of getting their property taken, and this is the backlash.”

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Environmentalists like Jon Goldin-Dubois of the Colorado Private Interest Research Group say “takings” laws hinder the government’s ability to enforce regulations “in the best interest of the public as a whole.”

The movement is “about using property any way I want without regard for public safety,” said Carmi McLean of Clean Water Action.

But the property rights tide is rising, nonetheless. Between 80 and 90 bills addressing the issue were introduced in about 30 states this year. As of mid-May, seven bills had passed state legislatures; two passed in all of 1993.

“For 30 states to be considering bills in this area, this ranks up there with unfunded federal mandates,” said Larry Morandi of the National Conference of State Legislatures.

“It is the top environmental issue this session in terms of state legislation,” Morandi said.

The American Legislative Exchange Council, a conservative clearinghouse for state legislators, is pushing the agenda, providing model legislation for interested legislators.

“Environmental protection benefits society; therefore, society should bear the costs,” reads the outline of the group’s property rights agenda this year.

“It is inequitable for government to shift the cost of environmental protection to a small number of private property owners who are coerced into ‘donating’ their assets . . . to the public without just compensation.”

Idaho, Tennessee, Utah and West Virginia have approved laws requiring state agencies to assess rules and regulations before they are put into effect to ensure they don’t constitute a “taking.”

No state has approved a broad formula for compensating landowners, though a Mississippi bill says a landowner must be compensated if his property is devalued by 40% or more by forestry regulations.

On the federal level, a recent attempt to raise the EPA to Cabinet level was derailed because takings language was tacked onto the measure.

Senate Minority Leader Bob Dole (R-Kan.) is pushing a property rights bill in the Senate. There is no property rights legislation pending in the House.

Historically, court rulings have held governments can regulate private use of land as long as the owner is not denied total use of it.

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A court held that was the case in a South Carolina lawsuit. Developer David Lucas was awarded $1 million after a new coastal zone management plan kept Lucas from building on ocean front lots he had purchased.

In June, the Supreme Court went further in the Dolan case.

Florence Dolan wanted to expand her plumbing-supply store and she claimed the city of Tigard, Ore., had violated the Constitution by ordering her to make part of her land a public bike path as a condition of allowing her expansion.

An Oregon court ruled that Tigard’s public-use requirement didn’t violate the Fifth Amendment.

But the Supreme Court ruled that the city had unduly restricted the use of the Dolans’ land, and sent the case back to the lower courts for more reconsideration.

Land use regulations, it said, cannot be written on the assumption that the public good outweighs private freedom.

“We see no reason why the takings clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation,” Chief Justice William Rehnquist wrote.

The debate is unlikely to disappear. Historically, property owners were expected to use their land prudently.

However, with rising development across the country, it is getting easier for landowners to infringe on others.

“It’s not a question of whether you regulate or not; it’s a question of who bears the cost,” said Colorado Atty. Gen. Gale Norton. “Does society bear the cost of regulations we feel are beneficial, or does the property owner who happens to be a single individual (get) caught in the line of fire?”