Bald Eagle Holds Property Squatters’ Rights : Puget Sound: Owners of hillside lot are fighting back after finding options limited by wildlife rules. Squabble highlights conflicts between landowners and conservation officials.

Ask Alan and Bonny Riggs why they became crusaders for property rights, and they answer with the tale of how a bald eagle nest turned them into criminals.

It started five years ago, when the Riggses bought five acres on a hillside with a fine view of Puget Sound. A rural life was what they wanted, so they were thrilled to learn that a pair of bald eagles were nesting in a tree 50 feet beyond their property line.

Thrilled, that is, until state wildlife officials told them the nest would limit what they could do on their $83,400 lot.

To get a house-building permit, the Riggses had to sign a 32-page eagle-management plan calling for nearly all of their newly cleared parcel to revert to forest. It also required them to plant a screen of evergreens 15 feet in front of the house. The trees, intended to block the eagles’ view of the house, also blocked the house’s view of the water.

The Riggses chafed under the restrictions, which they considered unnecessary to protect the eagles. But they say the real insult came when their screen of trees was deemed insufficient by wildlife officials. They were cited criminally and ordered into court.

“It was embarrassing, debilitating, emotionally draining,” Alan Riggs said.

“We like the eagles,” Bonny Riggs said. “We just wanted to build a house.”

Stories like theirs have long stoked the anger of die-hard property-rights advocates. But such tales are reaching a wider audience these days, due to the Republican Party’s commitment to property rights in its “Contract With America.” Bills fortifying the rights of property owners have won support in the U.S. House and many state legislatures.

Washington’s Initiative 164, considered the farthest-reaching of all the new property-rights laws, was to take effect today unless a signature-gathering campaign forces a statewide vote on the issue.

Details vary, but the measures share a common premise: If society wants to preserve eagles--or wetlands or open space or anything else considered to be of public benefit--then society should foot the bill, not individual landowners.

The strongest measures, including Initiative 164, require government to compensate landowners who can show regulation has reduced their property’s value.

The concept rankles environmentalists, Turn Into Fighters who say it imperils decades of environmental progress. And it worries many government officials, who envision busted budgets if they try to regulate land use and runaway development if they don’t.

But to people like Alan and Bonny Riggs, such compensation seems a sensible way to rein in an overzealous bureaucracy.

“They confiscated 90% of our property by restriction,” Bonny Riggs said. “If it was so important for the eagles, why didn’t they just buy it?

“What they want is for the landowner to be a custodian of wildlife for the state. If they want to manage public lands, that’s fine. But this is not public land. This is private property.”

The whole debate can be traced back to 12 words in the Fifth Amendment of the U.S. Constitution: “ . . . nor shall private property be taken for public use without just compensation.”

Courts have long held that when government condemns private land for a highway or school, the owner should be paid the land’s fair market value.

But what if government, rather than physically taking the land, enacts a law making the property worthless? How about a law that allows some use but not the most profitable use? Has the land been “taken” or merely regulated?

It’s a murky area of law. The U.S. Supreme Court ruled in 1922 that a taking may occur if regulation “goes too far,” but the court has yet to pin down how far that is.

Property-rights advocates want Congress and legislatures to step into the legal void.

“Since the 1970s, we have seen the creation of a huge regulatory regime, particularly as it pertains to environmental laws,” said Nancie Marzulla, president of Defenders of Property Rights, a legal defense group based in Washington, D.C.

“The net effect is the property owner is screaming for help.”

The property-rights movement first showed on the political radar in the 1980s. But at the start it was a mostly rural phenomenon with a limited following, a disorganized crusade carried on in farmhouse kitchens and small-town diners.

Disgruntled landowners swapped horror stories about the North Dakota farmer who couldn’t plow because his field was declared a wetland, the South Carolina wood lot owner who couldn’t log because red-cockaded woodpeckers had moved in and the Washington state widow who couldn’t build a house by the Columbia River because her land was in a “scenic viewshed.”

Now, with a more conservative crowd in Congress and many statehouses, those stories are being told in legislative hearing rooms--and getting results.

The U.S. House passed a bill in March that would allow landowners to be compensated when federal laws protecting wetlands or endangered species reduce a property’s value by at least 20%. An even broader bill is before the Senate, though its chances of surviving intact are considered poor.

Nearly every state legislature, meanwhile, has considered property-rights bills in the past three years, and 20 states have passed legislation. While many measures call only for assessing the economic impact of new environmental laws on private land, at least five states go further.

Washington, Florida, Mississippi and Louisiana passed laws this year that entitle property owners to compensation when state and local governments impose land-use restrictions that reduce property values. In Texas, landowners can’t get paid but can sue to block enforcement of new regulations that reduce a property’s value by 25% or more.

Washington’s Initiative 164, passed by the Legislature in April, considers private property to be “taken for general public use” if new regulations limit development to provide any public benefit other than preventing a nuisance. Its compensation provision has no lower limit, so even a small loss of value is grounds for the property owner to sue.

Supporters say the intent of requiring compensation is to send a message, not to make money for landowners.

“We’re saying to government: ‘Slow down and see if there’s a better way to treat citizens,’ ” said Dan Wood, a property-rights activist from Hoquiam, an Olympic Peninsula timber town. “You can’t just run blindly into new regulations.”

Opponents say Initiative 164 runs blindly itself, appealing to frustrated property owners but carrying unintended consequences. They’re trying to collect signatures of 90,834 voters by Saturday to put the issue on the statewide ballot in November.

Initiative 164 would create “regulatory chaos and a fiscal nightmare” for local and state governments, crippling their ability to enforce zoning, environmental protections and health standards, said John Lamson, spokesman for the No On 164 Coalition.

“They could go broke or lose the quality of life in their communities,” said Lamson. “All it takes is one ornery, selfish property owner to put up a gas station in a residential neighborhood--or to be paid off not to.”

Wood said Lamson is overreacting. He said 164 is not aimed at “common zoning ordinances” that divide a community’s land into residential, commercial and industrial zones. He said it would, however, affect zoning laws requiring buffers or open space, such as ordinances limiting development to one house per five acres or requiring greenbelts in industrial parks.

Who’s right? If Initiative 164 survives, it may take years of legal challenges and court rulings to determine its precise reach, and that could be expensive, both for government agencies and citizens filing suit.

Grass-roots horror stories aside, small landowners are the least likely to benefit from the recent crop of “takings” legislation, said John Echeverria, an attorney with the National Audubon Society in Washington, D.C.

Most homeowners, with small parcels of already developed land, are unlikely to see their property value diminished by regulation. And if they do, the loss won’t be big enough to make it worth suing for compensation, Echeverria said.

But their taxes may rise to help pay off claims by big landowners, who have enough undeveloped land to make it worth their while to sue the government, he said.

“The solution for small landowners is to make the regulatory system easier to navigate, not establish some new theory of property rights that gives you a right to go to court and litigate forever,” Echeverria said.

Alan and Bonny Riggs can attest to the cost of litigation. They’ve spent $30,000 battling the state over the eagles next door.

Their case painfully illustrates the gulf between society’s public and private sides, between those who regulate and those who are regulated.

After their humiliating day in court, the Riggses put up an 8-foot-high latticework fence and planted more trees, blocking their view of Puget Sound even more thoroughly.

Then nature intervened. Last November, a storm blew down the eagles’ nesting tree. The Riggses removed the fence and screening trees the next day.

They also hired a new attorney, an expert in natural-resources law, and when the eagles built another nest 50 feet away, the lawyer negotiated a new plan that is far less restrictive. Just two pages long, it requires neither the fence nor the screening trees. And state officials agree the eagles are fine.

On a recent sunny day at the Riggses’ place, it was hard to see what the uproar was about. The Riggses sipped iced tea on their deck, enjoying their unfettered view of Puget Sound. The pair of eagles put on a magnificent show, soaring over the Riggses’ land on their way to tend a scruffy eaglet in the nest.

So why has this become a horror story for the property-rights movement instead of a model of cooperation between government and private landowners? Why are the Riggses bad-mouthing the bureaucracy on radio talk shows and “NBC Nightly News”?

The Riggses say they were offended by heavy-handed wildlife officials. The officials say the Riggses were combative from the start.

“Part of their frustration with bureaucracy was brought on by themselves,” said Elizabeth Rodrick, the state’s eagle-management coordinator. “They had the attitude that they didn’t have to obey the law.”

It didn’t help that the logger who cleared the Riggses’ land cut down far more trees than his permit allowed, Rodrick said.

“That really reduced the options for any kind of buffer zone for the eagle tree,” she said.

There are some ironies here. Initiative 164 wouldn’t help the Riggses win compensation, since only new regulations are affected, not existing ones. Besides, the way things worked out, their property value hasn’t fallen. If anything, having eagles for neighbors may enhance their home’s marketability.

But the Riggses say the property-rights revolt is not about any particular initiative. They say it’s about frustration--and right or wrong, they feel it.

“We spent $30,000 to fight something that didn’t need to be fought, and the state spent $60,000-plus,” Bonny Riggs said. “That’s no vindication of the process.”

“The whole property-rights movement is a backlash to being sat on for too long by the government,” Alan Riggs said. “Everything you do, you’re wondering whether you’re going to trigger a reaction from them. You shouldn’t have to live like that.”